At the effective time of the First Merger, the certificate
of incorporation of the Company in effect as of immediately prior to the effective time of the First Merger was amended and restated,
and the bylaws of Merger Sub I, as in effect as of immediately prior to the effective time of the First Merger, became the by-laws
of the Company, in each case in accordance with the terms of the Merger Agreement. Copies of the amended and restated certificate
of incorporation and the by-laws are filed as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K and are incorporated
by reference in this Item 5.03.
SIGNATURE
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.
Diamond Foods, LLC
(successor in interest to Diamond Foods, Inc.)
Date: February 29, 2016
By: /s/ Rick D. Puckett
Rick D. Puckett
Executive Vice President and Chief Financial
Officer
4
Exhibit 3.1
CERTIFICATE OF MERGER
OF
SHARK ACQUISITION SUB I, INC.,
A DELAWARE CORPORATION
INTO
DIAMOND FOODS, INC.,
A DELAWARE CORPORATION
Pursuant to Section 251 of the General Corporation
Law of
the State of Delaware
Diamond Foods, Inc., a Delaware corporation
(“Diamond”), does hereby certify as follows:
FIRST: Each of Diamond and Shark Acquisition
Sub I, Inc. (“Merger Sub”) is a corporation duly organized and existing under the laws of the state of Delaware.
SECOND: An Agreement and Plan of Merger
and Reorganization (the “Agreement”), dated as of October 27, 2015, by and among Snyder’s-Lance, Inc.,
a North Carolina corporation, Merger Sub, Shark Acquisition Sub II, LLC, a Delaware limited liability company, and Diamond, setting
forth the terms and conditions of the merger of Merger Sub with and into Diamond (the “Merger”), has been approved,
adopted, executed and acknowledged by each of the constituent corporations in accordance with Section 251 of the General Corporation
Law of the State of Delaware.
THIRD: The name of the corporation surviving
the Merger (the “Surviving Corporation”) shall be Diamond Foods, Inc.
FOURTH: The Certificate of Incorporation
of Diamond shall be amended and restated to read in its entirety as set forth in Exhibit A attached hereto.
FIFTH: An executed copy of the Agreement
is on file at the principal place of business of the Surviving Corporation at the following address:
Diamond Foods, Inc.
600 Montgomery Street, 13th Floor
San Francisco, CA 94111-2702
SIXTH: A copy of the Agreement will be furnished
by the Surviving Corporation, on request and without cost, to any stockholder of either constituent corporation.
SEVENTH: The Merger is to become effective
as of 8:30 a.m. (Eastern Standard Time) on February 29, 2016.
[Remainder of page intentionally left
blank]
IN WITNESS WHEREOF, Diamond Foods, Inc.
has caused this Certificate of Merger to be executed in its corporate name as of the 29th day of February 2016.
|
DIAMOND FOODS, INC. |
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By: |
/s/ Brian J. Driscoll |
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Name: Brian J. Driscoll |
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Title: Chief Executive Officer |
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Exhibit A
Second Amended and Restated Certificate
of Incorporation of Diamond Foods, Inc.
SECOND AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION
OF
DIAMOND FOODS, INC.
| FIRST: | Name. The name of the corporation is Diamond Foods, Inc. |
| SECOND: | Registered Office and Registered Agent. The address of the registered office of the corporation
in Delaware is The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, County
of New Castle, and the name of its registered agent at that address is The Corporation Trust Company. |
| THIRD: | Purposes. The purpose of the corporation is to engage in any lawful act or activity for
which corporations may be organized under the Act. |
| FOURTH: | Capital Stock. The total number of shares of stock that the corporation is authorized to
issue is 1,000 shares, par value $0.01 per share, all of which shares are designated as common stock. |
| FIFTH: | Bylaws. The board of directors of the corporation is expressly authorized to adopt, amend
or repeal bylaws of the corporation. |
| SIXTH: | Limitation of Directors’ Liability. To the fullest extent permitted by law, no director
of the corporation shall be personally liable to the corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director. If the Act is amended after the filing of this Certificate of Incorporation to authorize corporate
action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation
shall be eliminated or limited to the fullest extent permitted by the Act, as so amended. Any repeal or modification of this Article
SIXTH by the stockholders of the corporation shall not adversely affect any right or protection of a director of the corporation
existing at the time of such repeal or modification. |
| SEVENTH: | Elections of Directors. Elections of directors need not be by written ballot unless the
bylaws of the corporation shall so provide. |
| EIGHTH: | Indemnification. The Corporation shall, to the fullest extent permitted by the Act, indemnify
any and all directors, officers, employees and agents of the Corporation whom it shall have power to indemnify under said section
from and against any and all of the expenses, liabilities or other matters referred to in or covered by said section, and the indemnification
provided for herein shall not be deemed exclusive of any other rights to which those indemnified may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such persons’ official capacity
and as to action in |
another capacity while holding
such directorship, office, employment or agency, and shall continue as to a person who has ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. Neither the repeal nor modification
of this Article EIGHTH, or the adoption of any provision to the certificate of incorporation that is inconsistent with this Article
EIGHTH, shall eliminate, restrict or otherwise adversely affect any right or protection of any such person existing hereunder with
respect to any act or omission occurring prior to such repeal, modification or adoption of an inconsistent provision.
| NINTH: | Unless the Corporation consents in writing to the selection of an alternative forum, the Court
of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought
on behalf of the Corporation, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee
or agent of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising
pursuant to any provision of the Act, the Certificate of Incorporation or the bylaws or (iv) any action asserting a claim governed
by the internal affairs doctrine. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock
of the Corporation shall be deemed to have notice of and consented to the provisions of this Article NINTH. |
Exhibit 3.2
DIAMOND
FOODS, Inc.
AMENDED
AND RESTATED bylaws
FEBRUARY
29, 2016
Table of Contents
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Page |
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Preamble |
1 |
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Article 1. Stockholders’ Meetings |
1 |
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1.1. |
Place of Meetings |
1 |
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1.2. |
Annual Meeting |
1 |
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1.3. |
Special Meetings |
1 |
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1.4. |
Remote Communications |
1 |
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1.5. |
Notice of Meetings |
1 |
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1.6. |
Quorum |
2 |
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1.7. |
Adjournment of Meetings |
2 |
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1.8. |
Voting List |
2 |
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1.9. |
Vote Required |
3 |
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1.10. |
Chairperson; Secretary |
3 |
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1.11. |
Rules of Conduct |
3 |
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1.12. |
Inspectors of Elections |
3 |
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1.13. |
Record Date |
3 |
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1.14. |
Written Consent |
4 |
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Article 2. Directors |
4 |
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2.1. |
Number and Qualifications |
4 |
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2.2. |
Term of Office |
4 |
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2.3. |
Resignation |
4 |
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2.4. |
Vacancies |
4 |
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2.5. |
Regular Meetings |
4 |
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2.6. |
Special Meetings |
4 |
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2.7. |
Notice |
5 |
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2.8. |
Quorum |
5 |
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2.9. |
Vote Required |
5 |
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2.10. |
Chairperson; Secretary |
5 |
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2.11. |
Use of Communications Equipment |
5 |
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2.12. |
Action Without a Meeting |
5 |
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2.13. |
Compensation of Directors |
5 |
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2.14. |
Committees |
6 |
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2.15. |
Chairperson and Vice Chairperson of the Board |
6 |
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Article 3. Officers |
6 |
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3.1. |
Offices Created; Qualifications; Election |
6 |
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3.2. |
Term of Office |
6 |
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3.3. |
Removal of Officers |
6 |
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3.4. |
Resignation |
7 |
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3.5. |
Vacancies |
7 |
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3.6. |
Compensation |
7 |
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3.7. |
Powers |
7 |
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3.8. |
President |
7 |
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3.9. |
Vice Presidents |
7 |
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3.10. |
Secretary |
7 |
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3.11. |
Assistant Secretaries |
7 |
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Article 4. Capital Stock |
8 |
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4.1. |
Stock Certificates |
8 |
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4.2. |
Registration; Registered Owners |
8 |
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4.3. |
Stockholder Addresses |
8 |
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4.4. |
Transfer of Shares |
8 |
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4.5. |
Lost, Stolen, Destroyed or Mutilated Certificates |
9 |
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Article 5. General Provisions |
9 |
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5.1. |
Waiver of Notice |
9 |
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5.2. |
Electronic Transmissions |
9 |
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5.3. |
Fiscal Year |
9 |
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5.4. |
Voting Stock of Other Organizations |
9 |
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5.5. |
Corporate Seal |
9 |
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5.6. |
Conflict with Applicable Law or Certificate of Incorporation |
9 |
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5.7. |
Amendment of Bylaws |
9 |
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Article 6. Indemnification |
10 |
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6.1. |
Indemnification |
10 |
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6.2. |
Advancement of Expenses |
10 |
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6.3. |
Non-Exclusivity |
10 |
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6.4. |
Heirs and Beneficiaries |
10 |
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6.5. |
Effect of Amendment |
10 |
AMENDED
AND RESTATED BYLAWS
OF
DIAMOND FOODS, Inc.
Adopted by the members
of the Board of Directors on February 29, 2016.
Article 1. Stockholders’
Meetings
1.1. Place of Meetings.
Meetings of the stockholders shall be held at such place, either within or without the State of Delaware, as the board of directors
shall determine. Rather than holding a meeting at any place, the board of directors may determine that a meeting shall be held
solely by means of remote communications, which means shall meet the requirements of the Delaware General Corporation Law.
1.2. Annual Meeting.
The annual meeting of the stockholders for the election of the directors and the transaction of such other business as may properly
be brought before the meeting, shall be held on the date and at the time designated by the board of directors.
1.3. Special Meetings.
Special meetings of the stockholders for any purpose or purposes may be called by the board of directors. No other person or persons
may call a special meeting. The business to be transacted at any special meeting shall be limited to the purposes stated in the
notice.
1.4. Remote Communications.
The board of directors may permit the stockholders and their proxy holders to participate in meetings of the stockholders (whether
such meetings are held at a designated place or solely by means of remote communication) using one or more methods of remote communication
that satisfy the requirements of the Delaware General Corporation Law. The board of directors may adopt such guidelines and procedures
applicable to participation in stockholders’ meetings by means of remote communication as it deems appropriate. Participation
in a stockholders’ meeting by means of a method of remote communication permitted by the board of directors shall constitute
presence in person at the meeting.
1.5. Notice of Meetings.
Notice of the place, if any, date and hour of any stockholders’ meeting shall be given to each stockholder entitled to vote.
The notice shall state the means of remote communications, if any, by which stockholders and proxy holders may be deemed present
in person and vote at the meeting. If the voting list for the meeting is to be made available by means of an electronic network
or if the meeting is to be held solely by remote communication, the notice shall include the information required to access the
reasonably accessible electronic network on which the corporation will make its voting list available either prior to the meeting
or, in the case of a meeting held solely by remote communication, during the meeting. Notice of a special meeting shall also state
the purpose or purposes for which the meeting has been called. Unless otherwise provided in the Delaware General Corporation Law,
notice shall be given at least 10 days but not more than 60 days before the date of the meeting. Without limiting the manner by
which notice may otherwise be given, notice may be given by a form of electronic transmission that satisfies the requirements of
the Delaware General
Corporation Law and has been consented to by the stockholder to whom notice is given. If mailed, notice shall
be deemed given when deposited in the U.S. mail, postage prepaid, directed to the stockholder’s address as it appears in
the corporation’s records. If given by a form of electronic transmission consented to by the stockholder to whom notice is
given, notice shall be deemed given at the times specified with respect to the giving of notice by electronic transmission in the
Delaware General Corporation Law. An affidavit of the corporation’s secretary, an assistant secretary or an agent of the
corporation that notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated in the affidavit.
1.6. Quorum.
The presence, in person or by proxy, of the holders of a majority of the voting power of the stock entitled to vote at a meeting
shall constitute a quorum. Where a separate vote by a class or series or classes or series of stock is required at a meeting, the
presence, in person or by proxy, of the holders of a majority of the voting power of each such class or series shall also be required
to constitute a quorum. In the absence of a quorum, either the chairperson of the meeting or the holders of a majority of the voting
power of the stock present, in person or by proxy, and entitled to vote at the meeting may adjourn the meeting in the manner provided
in Section 1.7 until a quorum shall be present. A quorum, once established at a meeting, shall not be broken by the withdrawal
of the holders of enough voting power to leave less than a quorum.
1.7. Adjournment
of Meetings. Either the chairperson of the meeting or the holders of a majority of the voting power of the stock present, in
person or by proxy, and entitled to vote at the meeting may adjourn any meeting of stockholders from time to time. At any adjourned
meeting the stockholders may transact any business that they might have transacted at the original meeting. Notice of an adjourned
meeting need not be given if the time and place, if any, or the means of remote communications to be used rather than holding the
meeting at any place are announced at the meeting so adjourned, except that notice of the adjourned meeting shall be required if
the adjournment is for more than 30 days or if after the adjournment a new record date is fixed for the adjourned meeting.
1.8. Voting List.
At least 10 days before every meeting of the stockholders, the secretary of the corporation shall prepare a complete alphabetical
list of the stockholders entitled to vote at the meeting showing each stockholder’s address and number of shares. This voting
list does not need to include electronic mail addresses or other electronic contact information for any stockholder nor need it
contain any information with respect to beneficial owners of the shares of stock owned, although it may do so. For a period of
at least 10 days before the meeting, the voting list shall be open to the examination of any stockholder for any purpose germane
to the meeting either on a reasonably accessible electronic network (provided that the information required to gain access
to the list is provided with the notice of the meeting) or during ordinary business hours at the corporation’s principal
place of business. If the list is made available on an electronic network, the corporation may take reasonable steps to ensure
that it is available only to stockholders. If the stockholders’ meeting is held at a place, the voting list shall be produced
and kept at that place during the whole time of the meeting. If the stockholders’ meeting is held solely by means of remote
communications, the voting list shall be made available for inspection on a reasonably accessible electronic network during the
whole time of the meeting. In either case, any stockholder may inspect the voting list at any time during the meeting.
1.9. Vote Required.
Subject to the provisions of the Delaware General Corporation Law requiring a higher level of votes to take certain specified actions
and to the terms of the corporation’s certificate of incorporation that set special voting requirements, the stockholders
shall take action on all matters other than the election of directors by a majority of the voting power of the stock present, in
person or by proxy, at the meeting and entitled to vote on the matter. The stockholders shall elect directors by a plurality of
the voting power of the stock present, in person or by proxy, at the meeting and entitled to vote on the matter.
1.10.
Chairperson; Secretary. The following people shall preside over any meeting of the stockholders: the chairperson
of the board of directors, if any, or, in the chairperson’s absence, the vice chairperson of the board of directors, if any,
or in the vice chairperson’s absence, the president, or, in the absence of all of the foregoing persons, a chairperson designated
by the board of directors, or, in the absence of a chairperson designated by the board of directors, a chairperson chosen by the
stockholders at the meeting. In the absence of the secretary and any assistant secretary, the chairperson of the meeting may appoint
any person to act as secretary of the meeting.
1.11.
Rules of Conduct. The board of directors may adopt such rules, regulations and procedures for the conduct of any
meeting of the stockholders as it deems appropriate including rules, regulations and procedures regarding participation in the
meeting by means of remote communication. Except to the extent inconsistent with any applicable rules, regulations or procedures
adopted by the board of directors, the chairperson of any meeting may adopt such rules, regulations and procedures for the meeting,
and take such actions with respect to the conduct of the meeting, as the chairperson of the meeting deems appropriate. The rules,
regulations and procedures adopted may include, without limitation, ones that (i) establish an agenda or order of business,
(ii) are intended to maintain order and safety at the meeting, (iii) restrict entry to the meeting after the time fixed
for its commencement and (iv) limit the time allotted to stockholder questions or comments. Unless otherwise determined by
the board of directors or the chairperson of the meeting, meetings of the stockholders need not be held in accordance with the
rules of parliamentary procedure.
1.12.
Inspectors of Elections. The board of directors or the chairperson of a stockholders’ meeting may appoint one
or more inspectors of election and any substitute inspectors to act at the meeting or any adjournment thereof. Inspectors may be
officers, employees or agents of the corporation. Each inspector, before entering on the discharge of the inspector’s duties,
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. Inspectors shall have the duties prescribed by the Delaware General Corporation Law. At the request
of the chairperson of the meeting, the inspector or inspectors shall prepare a written report of the results of the votes taken
and of any other question or matter that that inspector or inspectors determined.
1.13.
Record Date. If the corporation proposes to take any action for which the Delaware General Corporation Law would
permit it to set a record date, the board of directors may set such a record date as provided under the Delaware General Corporation
Law.
1.14.
Written Consent. Any action required or permitted to be taken at a meeting of the stockholders may be taken without
a meeting, without prior notice and without a vote by means of a stockholder written consent meeting the requirements of the Delaware
General Corporation Law. Prompt notice of the taking of action without a meeting by less than a unanimous written consent shall
be given to those stockholders who have not consented as required by the Delaware General Corporation Law.
Article 2. Directors
2.1. Number and Qualifications.
The board of directors shall consist of such number as may be fixed from time to time by resolution of the board of directors.
Directors need not be stockholders.
2.2. Term of Office.
Each director shall hold office until his or her successor is elected and qualified or until his or her earlier death, resignation
or removal.
2.3. Resignation.
A director may resign, as a director or as a committee member or both, at any time by giving notice in writing or by electronic
transmission to the corporation addressed to the board of directors, the chairperson of the board of directors, the president or
the secretary. A director may also tender an irrevocable resignation that is conditioned upon such director failing to receive
a specified vote for reelection as a director. A resignation will be effective upon its receipt by the corporation unless the resignation
specifies that it is to be effective at some later time upon the occurrence of some specified later event.
2.4. Vacancies.
Any vacancy in the board of directors, including a vacancy resulting from an enlargement of the board of directors, may be filled
by a vote of the majority of the remaining directors, although less than a quorum, or by a sole remaining director. If the corporation
at the time has outstanding any classes or series or class or series of stock that have or has the right, alone or with one or
more other classes or series or class or series, to elect one or more directors, then any vacancy in the board of directors caused
by the death, resignation or removal of a director so elected shall be filled only by a vote of the majority of the remaining directors
so elected, by a sole remaining director so elected or, if no director so elected remains, by the holders of those classes or series
or that class or series. A director appointed by the board of directors shall hold office until the earlier of the expiration of
the term of the director he or she is replacing, a successor is duly elected and qualified, or the earlier of such director’s
death, resignation or removal.
2.5. Regular Meetings.
The board of directors may hold regular meetings without notice at such times and places as it may from time to time determine,
provided that notice of any such determination shall be given to any director who is absent when such a determination is
made. A regular meeting of the board of directors may be held without notice immediately after and at the same place as the annual
meeting of the stockholders.
2.6. Special Meetings.
Special meetings of the board of directors may be called by the chairperson of the board of directors, the president or by any
director. Notice of any special meeting shall be given to each director and shall state the time and place for the special meeting.
2.7. Notice.
Any time it is necessary to give notice of a board of directors’ meeting, notice shall be given (i) in person or by
telephone to the director at least 24 hours in advance of the meeting, (ii) by personally delivering written notice to the
director’s last known business or home address at least 24 hours in advance of the meeting, (iii) by delivering an electronic
transmission (including, without limitation, via telefacsimile or electronic mail) to the director’s last known number or
address for receiving electronic transmissions of that type at least 24 hours in advance of the meeting, (iv) by depositing
written notice with a reputable delivery service or overnight carrier addressed to the director’s last known business or
home address for delivery to that address no later than the business day preceding the date of the meeting or (v) by depositing
written notice in the U.S. mail, postage prepaid, addressed to the director’s last known business or home address no later
than the third business day preceding the date of the meeting. Notice of a meeting need not be given to any director who attends
a meeting without protesting prior to the meeting or at its commencement to the lack of notice to that director. A notice of meeting
need not specify the purposes of the meeting.
2.8. Quorum.
A majority of the directors in office at the time shall constitute a quorum. Thereafter, a quorum shall be deemed present for purposes
of conducting business and determining the vote required to take action for so long as at least a third of the total number of
directors are present. In the absence of a quorum, the directors present may adjourn the meeting without notice until a quorum
shall be present, at which point the meeting may be held.
2.9. Vote Required.
The board of directors shall act by the vote of a majority of the directors present at a meeting at which a quorum is present.
2.10.
Chairperson; Secretary. If the chairperson and the vice chairperson are not present at any meeting of the board of
directors, or if no such officers have been elected, then the board of directors shall choose a director who is present at the
meeting to preside over it. In the absence of the secretary and any assistant secretary, the chairperson may appoint any person
to act as secretary of the meeting.
2.11.
Use of Communications Equipment. Directors may participate in meetings of the board of directors or any committee
of the board of directors by means of conference telephone or other communications equipment by means of which all persons participating
in the meeting can hear each other. Participation in a meeting in this manner shall constitute presence in person at the meeting.
2.12.
Action Without a Meeting. Any action required or permitted to be taken at any meeting of the board of directors may
be taken without a meeting if all of the directors consent to the action in writing or by electronic transmission. The writing
or writings or electronic transmission or transmissions shall be filed with the minutes of the proceedings of the board of directors
or of the relevant committee.
2.13.
Compensation of Directors. The board of directors shall from time to time determine the amount and type of compensation
to be paid to directors for their service on the board of directors and its committees.
2.14.
Committees. The board of directors may designate one or more committees, each of which shall consist of one or more
directors. The board of directors may designate one or more directors as alternate members of any committee, who may replace any
absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the
member or members present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum,
may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified
member. Any committee shall, to the extent provided in a resolution of the board of directors and subject to the limitations contained
in the Delaware General Corporation Law, have and may exercise all the powers and authority of the board of directors in the management
of the business and affairs of the corporation. Each committee shall keep such records and report to the board of directors in
such manner as the board of directors may from time to time determine. Except as the board of directors may otherwise determine,
any committee may make rules for the conduct of its business. Unless otherwise provided in a resolution of the board of directors
or in rules adopted by the committee, each committee shall conduct its business as nearly as possible in the same manner as is
provided in these bylaws for the board of directors.
2.15.
Chairperson and Vice Chairperson of the Board. The board of directors may elect from its members a chairperson of
the board and a vice chairperson. If a chairperson has been elected and is present, the chairperson shall preside at all meetings
of the board of directors and the stockholders. The chairperson shall have such other powers and perform such other duties as the
board of directors may designate. If the board of directors elects a vice chairperson, the vice chairperson shall, in the absence
or disability of the chairperson, perform the duties and exercise the powers of the chairperson and have such other powers and
perform such other duties as the board of directors may designate.
Article 3. Officers
3.1. Offices Created;
Qualifications; Election. The corporation shall have a president, a secretary and such other officers, if any, as the board
of directors from time to time may appoint. Any officer may be, but need not be, a director or stockholder. The same person may
hold any two or more offices. The board of directors may elect officers at any time.
3.2. Term of Office.
Each officer shall hold office until his or her successor has been elected, unless a different term is specified in the resolution
electing the officer, or until his or her earlier death, resignation or removal.
3.3. Removal of Officers.
Any officer may be removed from office at any time, with or without cause, by the board of directors.
3.4. Resignation.
An officer may resign at any time by giving notice in writing or by electronic transmission to the corporation addressed to the
board of directors, the chairperson of the board of directors, the president or the secretary. A resignation will be effective
upon its receipt by the corporation unless the resignation specifies that it is to be effective at some later time or upon the
occurrence of some specified later event.
3.5. Vacancies.
A vacancy in any office may be filled by the board of directors.
3.6. Compensation.
Officers shall receive such amounts and types of compensation for their services as shall be fixed by the board of directors.
3.7. Powers.
Unless otherwise specified by the board of directors, each officer shall have those powers and shall perform those duties that
are (i) set forth in these bylaws (if any are so set forth), (ii) set forth in the resolution of the board of directors
electing that officer or any subsequent resolution of the board of directors with respect to that officer’s duties or (iii) commonly
incident to the office held.
3.8. President.
The president shall be subject to the direction and control of the board of directors and shall have general active management
of the business, affairs and policies of the corporation. The president shall have the power to sign all certificates, contracts
and other instruments on behalf of the corporation.
3.9. Vice Presidents.
The vice presidents, if any, shall be subject to the direction and control of the board of directors and the president and shall
have such powers and duties as the board of directors or the president may assign to them. If the board of directors elects more
than one vice president, then it shall determine their respective titles, seniority and duties. If the president is absent, disqualified
from acting, unable to act or refuses to act, the most senior in rank of the vice presidents (as determined by the board of directors)
shall have the powers of, and shall perform the duties of, the president.
3.10.
Secretary. The secretary shall, to the extent practicable, attend all meetings of the stockholders and the board
of directors. The secretary shall record the proceedings of the stockholders and the board of directors, including all actions
by written consent, in a book or series of books to be kept for that purpose. The secretary shall perform like duties for any committee
of the board of directors if the committee so requests. The secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the board of directors. Unless the corporation has appointed a transfer agent, the
secretary shall keep or cause to be kept the stock and transfer records of the corporation. The secretary shall have such other
powers and duties as the board of directors or the president may determine.
3.11.
Assistant Secretaries. The assistant secretaries, if any, shall have such powers and duties as the board of directors,
the president or the secretary may assign to them. If the board of directors elects more than one assistant secretary, then it
shall determine their respective titles, seniority and duties. If the secretary is absent, disqualified from acting, unable to
act or refuses to act, the most senior in rank of the assistant secretaries (as determined by the board of directors) shall have
the powers of, and shall perform the duties of, the secretary.
Article 4. Capital
Stock
4.1. Stock Certificates.
The corporation’s shares of stock shall be represented by certificates, provided that the board of directors may,
subject to the limits imposed by law, provide by resolution or resolutions that some or all of any or all classes or series shall
be uncertificated shares. Notwithstanding the adoption of such a resolution, every holder of shares of stock represented by certificates
and every holder of uncertificated shares, upon request, shall be entitled to have a certificate representing such shares in such
form as shall be approved by the board of directors. Stock certificates shall be numbered in the order of their issue and shall
be signed by or in the name of the corporation by (i) the chairperson or vice chairperson, if any, of the board of directors,
the president or a vice president and (ii) the secretary or an assistant secretary. Any or all of the signatures on
a certificate may be a facsimile. In case any officer, transfer agent or registrar who signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be an officer, transfer agent or registrar before such certificate is issued,
it may be issued by the corporation with the same effect as if such person were such officer, transfer agent or registrar at the
date of issue. Each certificate that is subject to any restriction on transfer shall have conspicuously noted on its face or back
either the full text of the restriction or a statement of the existence of the restriction. Each certificate shall have on its
face or back a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations,
preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences or rights.
4.2. Registration;
Registered Owners. The name of each person owning a share of the corporation’s capital stock shall be entered on the
books of the corporation together with the number of shares owned, the number or numbers of the certificate or certificates covering
such shares (if any) and the dates of issue of each certificate (if any). The corporation shall be entitled to treat the record
holder of stock as shown on its books as the owner of such stock for all purposes regardless of any transfer, pledge or other disposition
of such stock until the shares have been properly transferred on the books of the corporation.
4.3. Stockholder
Addresses. It shall be the duty of each stockholder to notify the corporation of the stockholder’s address.
4.4. Transfer of
Shares. Stock of the corporation shall be transferable in the manner prescribed by law and in these bylaws. Registration of
transfer of shares of the corporation’s stock shall be made only on the books of the corporation at the request of the registered
holder or of the registered holder’s duly authorized attorney (as evidenced by a duly executed power of attorney provided
to the corporation) and upon surrender of the certificate or certificates representing those shares properly endorsed or accompanied
by a duly executed stock power. The board of directors may make further rules and regulations concerning the transfer and registration
of shares of stock and the certificates representing them and may appoint a transfer agent or registrar or both and may require
all stock certificates to bear the signature of either or both.
4.5. Lost, Stolen,
Destroyed or Mutilated Certificates. The corporation may issue a new stock certificate of stock in the place of any certificate
theretofore issued by it alleged to have been lost, stolen, destroyed or mutilated. The board of directors may require the owner
of the allegedly lost, stolen or destroyed certificate, or the owner’s legal representatives, to give the corporation such
bond or such surety or sureties as the board of directors, in its sole discretion, deems sufficient to indemnify the corporation
against any claim that may be made against it on account of the alleged loss, theft or destruction or the issuance of such new
certificate and, in the case of a certificate alleged to have been mutilated, to surrender the mutilated certificate.
Article 5. General
Provisions
5.1. Waiver of Notice.
Any stockholder or director, may execute a written waiver or give a waiver by electronic transmission of notice of the meeting,
either before or after such meeting. Any such waiver shall be filed with the records of the corporation. If any stockholder or
director shall be present at any meeting it shall constitute a waiver of notice of the meeting, except when that stockholder or
director attends 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. A waiver of notice of meeting need not specify the purposes of the meeting.
5.2. Electronic Transmissions. For purposes of these bylaws, “electronic transmission” shall mean a form of communication not directly involving
the physical transmission of paper that satisfies the requirements with respect to such communications contained in the Delaware
General Corporation Law.
5.3. Fiscal Year.
The fiscal year of the corporation shall be fixed by resolution of the board of directors.
5.4. Voting Stock
of Other Organizations. Except as the board of directors may otherwise designate, each of the president and secretary may waive
notice of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for the corporation (with power of
substitution) at any meeting of the stockholders, members or other owners of any other corporation or organization the securities
or ownership interests of which are owned by the corporation.
5.5. Corporate Seal.
The corporation shall have no seal, unless the board of directors shall by resolution adopt such a seal.
5.6. Conflict with Applicable
Law or Certificate of Incorporation. These bylaws are adopted subject to any applicable law and the corporation’s certificate
of incorporation. Whenever these bylaws may conflict with any applicable law or the corporation’s certificate of incorporation,
such conflict shall be resolved in favor of such law or the corporation’s certificate of incorporation.
5.7. Amendment of
Bylaws. These bylaws, including any bylaws adopted or amended by the stockholders, may be amended or repealed by the board
of directors.
Article 6. Indemnification
6.1. Indemnification.
The corporation shall, to the fullest extent permitted by law, indemnify every person who is or was a party or is or was threatened
to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative (an “Action”),
by reason of the fact that such person is or was a director or officer of the corporation or is or was serving at the request of
the corporation as a director, officer, trustee, plan administrator or plan fiduciary of another corporation, partnership, limited
liability company, trust, employee benefit plan or other enterprise (an “Indemnified Person”), against all expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement or other disposition that the Indemnified Person
actually and reasonably incurs in connection with the Action and shall reimburse each such person for all legal fees and expenses
reasonably incurred by such person in seeking to enforce its rights to indemnification under this Article (by means of legal action
or otherwise).
6.2. Advancement
of Expenses. Upon written request from an Indemnified Person, the corporation shall pay the expenses (including attorneys’
fees) incurred by such Indemnified Person in connection with any Action in advance of the final disposition of such Action. The
corporation’s obligation to pay expenses pursuant to this Section shall be contingent upon the Indemnified Person providing
the undertaking required by the Delaware General Corporation Law.
6.3. Non-Exclusivity.
The rights of indemnification and advancement of expenses contained in this Article shall not be exclusive of any other rights
to indemnification or similar protection to which any Indemnified Person may be entitled under any agreement, vote of stockholders
or disinterested directors, insurance policy or otherwise.
6.4. Heirs and Beneficiaries.
The rights created by this Article shall inure to the benefit of each Indemnified Person and each heir, executor and administrator
of such Indemnified Person.
6.5. Effect of Amendment.
Neither the amendment, modification or repeal of this Article nor the adoption of any provision in these bylaws inconsistent with
this Article shall adversely affect any right or protection of an Indemnified Person with respect to any act or omission that occurred
prior to the time of such amendment, modification, repeal or adoption.
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