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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): January
5, 2024
Allied Gaming & Entertainment Inc.
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-38226 |
|
82-1659427 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer
Identification No.) |
745 Fifth Avenue, Suite 500,
New
York, New York 10151
(Address
and zip code of principal executive offices)
Registrant’s
telephone number, including area code: (646) 768-4240
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 (see General Instruction A.2. below):
| ☐ | 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 |
Common Stock |
|
AGAE |
|
The
NASDAQ Stock Market LLC |
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.
(a)
On January 5, 2024, the Board of Directors (the “Board”)
of Allied Gaming & Entertainment, Inc. (the “Company”) approved and adopted amendments to the Bylaws of the Company (the
“Amended Bylaws”) to, among other things:
| ● | revise
the advance notice provision to require stockholders to provide additional information about stockholder proposals and nominees for directors,
including ownership requirements, conflicts of interest, and qualification, at both the annual and special meetings of stockholders; |
| ● | revise
the provisions governing the right of stockholders to request the books and records of the Company to align with Delaware law requirements; |
| ● | increase
the voting threshold for stockholder amendment of the bylaws to two-thirds (2/3) of outstanding shares; and |
| ● | add
an exclusive forum provision for adjudication of claims under the Securities Act of 1933, as amended, in Delaware courts. |
A
copy of the Amended Bylaws is attached as Exhibit 3.1 to this Current Report on Form 8-K and incorporated by reference herein. The foregoing
description of the Amended Bylaws is qualified in its entirety by reference to the full text of the Amended Bylaws.
Item
9.01 Financial Statements and Exhibits.
(d)
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.
|
ALLIED
GAMING & ENTERTAINMENT, INC. |
|
|
|
Date: January
9, 2024 |
By: |
/s/
Roy Anderson |
|
|
Roy
Anderson |
|
|
Chief
Financial Officer |
2
Exhibit 3.1
Adopted as of January 5, 2024
AMENDED AND RESTATED
BYLAWS
OF
ALLIED GAMING
& ENTERTAINMENT INC.
Article
I
OFFICES
1.1 Registered
Office. The registered office of Allied Gaming & Entertainment Inc. (the “Corporation”) in the State of Delaware shall
be established and maintained at 1209 Orange Street, Corporation Trust Center, Wilmington, DE 19801.
1.2 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
MEETINGS OF STOCKHOLDERS
2.1 Place
of Meetings. All meetings of the stockholders shall be held at such time and place, either within or without the State of Delaware,
as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver
of notice thereof.
2.2 Annual
Meetings. The annual meeting of the stockholders for the election of directors and for the transaction of such other business as may
properly come before the meeting in accordance with these bylaws (the “Bylaws”) shall be held at such date, time, and place,
if any, as shall be determined by the Board of Directors and stated in the notice of the meeting.
2.3 Special
Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate
of Incorporation of the Corporation (the “Certificate of Incorporation”), may only be called by a majority of the entire Board
of Directors, or the President or the Chairman, and shall be called by the Secretary at the request in writing of stockholders owning
a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote on the matter or matters
to be brought before the proposed special meeting.
(a) Notice.
A request to the Secretary shall be delivered to the Secretary at the Corporation’s principal executive offices and signed by each stockholder,
or a duly authorized agent of such stockholder, requesting the special meeting and shall set forth:
(1) a
brief description of each matter of business desired to be brought before the special meeting;
(2) the
reasons for conducting such business at the special meeting;
(3) the
text of any proposal or business to be considered at the special meeting (including the text of any resolutions proposed to be considered
and in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment); and
(4) the
information required in Section 2.13 of these Bylaws.
(b) Business.
Business transacted at a special meeting requested by stockholders shall be limited to the matters described in the special meeting request;
provided, however, that nothing herein shall prohibit the Board of Directors from submitting matters to the stockholders at any
special meeting requested by stockholders.
(c) Time
and Date. A special meeting requested by stockholders shall be held at such date and time as may be fixed by the Board of Directors;
provided, however, that the date of any such special meeting shall be not more than 90 days after the request to call the special
meeting is received by the Secretary. Notwithstanding the foregoing, a special meeting requested by stockholders shall not be held if:
(1) the
Board of Directors has called or calls for an annual or special meeting of the stockholders to be held within 90 days after the Secretary
receives the request for the special meeting and the Board of Directors determines in good faith that the business of such meeting includes
(among any other matters properly brought before the meeting) the business specified in the request;
(2) the
stated business to be brought before the special meeting is not a proper subject for stockholder action under applicable law;
(3) an
identical or substantially similar item (a “Similar Item”) was presented at any meeting of stockholders held within 120 days
prior to the receipt by the Secretary of the request for the special meeting (and, for purposes of this Section 2.3(c)(3), the
election of directors shall be deemed a Similar Item with respect to all items of business involving the election or removal of directors);
or
(4) the
special meeting request was made in a manner that involved a violation of Regulation 14A under the Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated thereunder (the “Exchange Act”).
(d) Revocation.
A stockholder may revoke a request for a special meeting at any time by written revocation delivered to the Secretary at the Corporation’s
principal executive offices, and if, following such revocation, there are unrevoked requests from stockholders holding in the aggregate
less than the requisite number of shares entitling the stockholders to request the calling of a special meeting, the Board of Directors,
in its discretion, may cancel the special meeting.
2.4 Notice
of Meetings. Notice of the place (if any), date, hour, the record date for determining the stockholders entitled to vote at the meeting
(if such date is different from the record date for stockholders entitled to notice of the meeting), and means of remote communication,
if any, of every meeting of stockholders shall be given by the Corporation not less than ten days nor more than 60 days before the meeting
(unless a different time is specified by law) to every stockholder entitled to vote at the meeting as of the record date for determining
the stockholders entitled to notice of the meeting. Notices of special meetings shall also specify the purpose or purposes for which the
meeting has been called. Notices of meetings to stockholders may be given by mailing the same, addressed to the stockholder entitled thereto,
at such stockholder’s mailing address as it appears on the records of the corporation and such notice shall be deemed to be given
when deposited in the U.S. mail, postage prepaid. Without limiting the manner by which notices of meetings otherwise may be given effectively
to stockholders, any such notice may be given by electronic transmission in accordance with applicable law. Notice of any meeting need
not be given to any stockholder who shall, either before or after the meeting, submit a waiver of notice or who shall attend such meeting,
except when the stockholder 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. Any stockholder so waiving notice of the meeting shall be bound by the proceedings
of the meeting in all respects as if due notice thereof had been given.
2.5 Quorum.
The holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute
or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders,
the holders of a majority of the votes entitled to be cast by the stockholders entitled to vote thereat, present in person or represented
by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum
shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty (30) days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder
entitled to vote at the meeting.
2.6 Organization.
The Chairman of the Board of Directors shall act as chairman of meetings of the stockholders. The Board of Directors may designate any
other officer or director of the Corporation to act as chairman of any meeting in the absence of the Chairman of the Board of Directors,
and the Board of Directors may further provide for determining who shall act as chairman of any stockholders meeting in the absence of
the Chairman of the Board of Directors and such designee.
The Secretary of the Corporation
shall act as secretary of all meetings of the stockholders, but in the absence of the Secretary the presiding officer may appoint any
other person to act as secretary of any meeting.
2.7 Voting.
Unless otherwise required by law, the Certificate of Incorporation or these Bylaws, any question (other than the election of directors)
brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the stock represented and entitled
to vote thereat. At all meetings of stockholders for the election of directors, a plurality of the votes cast shall be sufficient to elect.
Each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share of the capital stock entitled
to vote thereat held by such stockholder, unless otherwise provided by the Certificate of Incorporation. Each stockholder entitled to
vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize any
person or persons to act for him by proxy. All proxies shall be executed in writing and shall be filed with the Secretary of the Corporation
not later than the day on which exercised. No proxy shall be voted or acted upon after three (3) years from its date, unless the proxy
provides for a longer period. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders,
in his discretion, may require that any votes cast at such meeting shall be cast by written ballot.
2.8 Voting
List. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten (10) days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, showing
the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior
to the election, either at a place within the city, town or village where the election is to be held, which place shall be specified in
the notice of the meeting, or, if not specified, at the place where said meeting is to be held. The list shall be produced and kept at
the time and place of election during the whole time thereof, and may be inspected by any stockholder of the Corporation who is present.
2.9 Stock
Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 2.8 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting
of stockholders.
2.10 Adjournment.
Any meeting of the stockholders, including one at which directors are to be elected, may be adjourned for such periods as the presiding
officer of the meeting or the stockholders present in person or by proxy and entitled to vote shall direct.
2.11 Ratification.
Any transaction questioned in any stockholders’ derivative suit, or any other suit to enforce alleged rights of the Corporation
or any of its stockholders, on the ground of lack of authority, defective or irregular execution, adverse interest of any director, officer
or stockholder, nondisclosure, miscomputation or the application of improper principles or practices of accounting may be approved, ratified
and confirmed before or after judgment by the Board of Directors or by the holders of Common Stock and, if so approved, ratified or confirmed,
shall have the same force and effect as if the questioned transaction had been originally duly authorized, and said approval, ratification
or confirmation shall be binding upon the Corporation and all of its stockholders and shall constitute a bar to any claim or execution
of any judgment in respect of such questioned transaction.
2.12 Inspectors.
The election of directors and any other vote by ballot at any meeting of the stockholders shall be supervised by at least one inspector.
Such inspectors shall be appointed by the Board of Directors in advance of the meeting. If the inspector so appointed shall refuse to
serve or shall not be present, such appointment shall be made by the officer presiding at the meeting.
2.13
Advance Notice of Stockholder Nominations
and Proposals.
(a) Annual
Meetings. At a meeting of the stockholders, only such nominations of persons for the election of directors and such other business
shall be conducted as shall have been properly brought before the meeting. Except for nominations that are included in the Corporation’s
annual meeting proxy statement, to be properly brought before an annual meeting, nominations or such other business must be:
(1) specified
in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors or any committee thereof;
(2) otherwise
properly brought before the meeting by or at the direction of the Board of Directors or any committee thereof; or
(3) otherwise
properly brought before an annual meeting by a stockholder who is a stockholder of record of the Corporation at the time such notice of
meeting is delivered and at the time of the annual meeting of stockholders, who is entitled to vote at the meeting, and who complies with
the notice procedures set forth in this Section 2.13.
In addition, any proposal of business (other than the nomination of
persons for election to the Board of Directors) must be a proper matter for stockholder action. For business (including, but not limited
to, director nominations) to be properly brought before an annual meeting by a stockholder pursuant to Section 2.13(a)(3), the stockholder
or stockholders of record intending to propose the business (the “Proposing Stockholder”) must have given timely notice thereof
pursuant to this Section 2.13(a), in writing to the Secretary even if such matter is already the subject of any notice to the stockholders
or Public Disclosure from the Board of Directors. To be timely, a Proposing Stockholder’s notice for an annual meeting must be delivered
to the Secretary at the principal executive offices of the Corporation: (x) not later than the close of business on the 90th day, nor
earlier than the close of business on the 120th day, in advance of the anniversary of the previous year’s annual meeting if such meeting
is to be held on a day which is not more than 30 days in advance of the anniversary of the previous year’s annual meeting or not later
than 60 days after the anniversary of the previous year’s annual meeting; and (y) with respect to any other annual meeting of stockholders,
including in the event that no annual meeting was held in the previous year, not earlier than the close of business on the 120th day prior
to the annual meeting and not later than the close of business on the later of: (1) the 90th day prior to the annual meeting and (2) the
close of business on the tenth day following the first date of Public Disclosure of the date of such meeting. In no event will the adjournment
or postponement (or the public announcement thereof) of an annual meeting for which notice has already been given or for which a public
announcement of the meeting date has already been made, commence a new notice time period (or extend any notice time period) for the giving
of a stockholder’s notice as described above. For the purposes of this Section 2.13, “Public Disclosure” shall mean a disclosure
made in a press release reported by the Dow Jones News Services, The Associated Press, or a comparable national news service or in a document
filed by the Corporation with the Securities and Exchange Commission (“SEC”) pursuant to Section 13, 14, or 15(d) of the Exchange
Act. The number of nominees a Proposing Stockholder may nominate for election at an annual meeting (or in the case of a Proposing Stockholder
giving the notice on behalf of a beneficial owner, the number of nominees a Proposing Stockholder may nominate for election at the annual
meeting on behalf of the beneficial owner) shall not exceed the number of directors to be elected by stockholders generally at such annual
meeting.
(b) Stockholder
Nominations. For the nomination of any person or persons for election to the Board of Directors pursuant to Section 2.13(a)(3) or
Section 2.13(d), a Proposing Stockholder’s timely notice to the Secretary (in accordance with the time periods for delivery of timely
notice as set forth in this Section 2.13) shall set forth or include:
(1) the
name, age, business address, and residence address of each nominee proposed in such notice;
(2) the
principal occupation or employment of each such nominee;
(3) the
class and number of shares of capital stock of the Corporation which are owned of record and beneficially by each such nominee (if any);
(4) such
other information concerning each such nominee as would be required to be disclosed in a proxy statement soliciting proxies for the election
of such nominee as a director in an election contest (even if an election contest is not involved) or that is otherwise required to be
disclosed, under Section 14(a) of the Exchange Act;
(5) a
written questionnaire with respect to the background and qualification of such proposed nominee, completed and executed by such proposed
nominee, in the form to be provided by the Secretary upon written request of any stockholder of record within 15 days of such request,
and a written statement and agreement executed by each such nominee acknowledging that such person:
(i) consents
to being named as a nominee in the proxy statement and form of proxy relating to the meeting at which directors are to be elected and
to serving as a director if elected,
(ii) intends
to serve as a director for the full term for which such person is standing for election, and
(iii) makes the following representations: (1)
that the director nominee has read and agrees to adhere to the Corporation’s corporate governance guidelines, code of ethics,
related party transaction policy and any other of the Corporation’s policies or guidelines applicable to directors, including with
regard to securities trading, (2) that the director nominee is not and will not become a party to any agreement, arrangement, or
understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a
director of the Corporation, will act or vote on any nomination or other business proposal, issue, or question (a “Voting
Commitment”) that has not been disclosed to the Corporation or any Voting Commitment that could limit or interfere with such
person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under applicable law,
and (3) that the director nominee is not and will not become a party to any agreement, arrangement, or understanding with any person
or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement, or indemnification
(“Compensation Arrangement”) that has not been disclosed to the Corporation in connection with such person’s nomination
for director or service as a director; and (6) as to the Proposing Stockholder, the beneficial owner, if any on whose behalf the
nomination or other business proposal is being made, and if such Proposing Stockholder or beneficial owner is an entity, as to each
director, executive, managing member, or control person of such entity (any such individual or control person, a “control
person”):
(i) the
name and address of the Proposing Stockholder as they appear on the Corporation’s books and of the beneficial owner, if any, on whose
behalf the nomination or other business proposal is being made and any control person,
(ii) the
class and number of shares of the Corporation which are owned as of the date of the Proposing Stockholder’s notice by the Proposing Stockholder
(beneficially and of record), the beneficial owner, if any, on whose behalf the nomination or other business proposal is being made, and
any control person, and a representation that the Proposing Stockholder will notify the Corporation in writing of the class and number
of such shares owned of record and beneficially by the Proposing Stockholder, the beneficial owner, and any control person as of the record
date for the meeting within five business days after the record date for such meeting,
(iii) a
description of any agreement, arrangement, or understanding with respect to such nomination or other business proposal between or among
the Proposing Stockholder, the beneficial owner, if any, on whose behalf the nomination or other business proposal is being made, any
control person, and any others (including their names) acting in concert with any of the foregoing; including without limitation (1) any
agreements that would be required to be disclosed pursuant to Item 5 or Item 6 of Schedule 13D under the Exchange Act and (2) any plans
or proposals which relate to or would result in any action that would be required to be disclosed pursuant to Item 4 of Schedule 13D under
the Exchange Act (in each case, regardless of whether the requirement to file a Schedule 13D under the Exchange Act is applicable), [and
a representation that the Proposing Stockholder will notify the Corporation in writing of any such agreement, arrangement, or understanding
in effect as of the record date for the meeting within five business days after the record date for such meeting,
(iv) a description
of any agreement, arrangement, or understanding (including any derivative or short positions, profit interests, options, hedging transactions,
and borrowed or loaned shares) that has been entered into as of the date of the Proposing Stockholder’s notice by, or on behalf of, the
Proposing Stockholder, the beneficial owner, if any, on whose behalf the nomination or other business proposal is being made, and any
control person, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or
decrease the voting power of the Proposing Stockholder, beneficial owner, or any of control person with respect to shares of stock of
the Corporation, and a representation that the Proposing Stockholder will notify the Corporation in writing of any such agreement, arrangement,
or understanding in effect as of the record date for the meeting within five business days after the record date for such meeting,
(v) a representation
that the Proposing Stockholder is a holder of record of shares of the Corporation entitled to vote at the meeting and intends to appear
in person at the meeting (or a qualified representative thereof intends to appear in person at the meeting) to nominate the person or
persons specified in the notice or propose such other business proposal,
(vi) a representation
whether the Proposing Stockholder, the beneficial owner, if any, on whose behalf the nomination or other business proposal is being made,
any control person, or any other participant (as defined in Item 4 of Schedule 14A under the Exchange Act) will engage in a solicitation
with respect to such nomination or other business proposal and, if so, the name of each participant in such solicitation; and a statement:
(1) confirming whether, the stockholder, beneficial owner, or any control person intends, or is part of a group that (x) in the case of
a nomination, intends to solicit proxies or votes in support of such director nominees or nomination in accordance with Rule 14a-19 under
the Exchange Act, including by delivering a proxy statement and form of proxy and soliciting the holders of shares representing at least
67% of the voting power of the shares entitled to vote on the election of directors in support of director nominees other than the Corporation’s
nominees, and (y) in the case of a business proposal, intends to deliver a proxy statement and form of proxy and solicit at least the
percentage of voting power of all of the shares of stock of the Corporation required under applicable law to approve the proposal; and
(2) whether or not any such stockholder, beneficial owner, or any control person intends to otherwise solicit proxies from stockholders
in support of such nomination or other business proposal,
(vii) the
names and addresses of other stockholders (including beneficial and record owners and control persons) known by the Proposing Stockholder
to support the nomination or other business proposal, and to the extent known, the class and number of all shares of the Corporation’s
capital stock owned beneficially or of record by such other stockholders (including beneficial and record owners and control persons),
and
(viii) any
other information relating to such Proposing Stockholder and beneficial owner, if any, on whose behalf the nomination or other business
proposal is being made, and any control person that is required to be disclosed in a proxy statement 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 an election
contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder.
The Corporation may require any proposed nominee
to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as an independent
director of the Corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof,
of such nominee.
(c) Other
Stockholder Proposals. For all business other than director nominations, a Proposing Stockholder’s timely notice to the Secretary
(in accordance with the time periods for delivery of timely notice as set forth in this Section 2.13) shall set forth as to each matter
the Proposing Stockholder proposes to bring before the annual meeting:
(1) a
brief description of the business desired to be brought before the annual meeting;
(2) the
reasons for conducting such business at the annual meeting;
(3) the
text of any proposal or business (including the text of any resolutions proposed for consideration and in the event that such business
includes a proposal to amend these Bylaws, the language of the proposed amendment);
(4) any
substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) in such business of such Proposing Stockholder,
beneficial owner, if any, on whose behalf the business is being proposed, and any control person;
(5) any
other information relating to such Proposing Stockholder, beneficial owner, if any, on whose behalf the proposal is being made, any control
person or any other participants (as defined in Item 4 of Schedule 14A under the Exchange Act) required to be disclosed in a proxy statement
or other filings required to be made in connection with solicitations of proxies for the proposal and pursuant to and in accordance with
Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder;
(6) a
description of all agreements, arrangements, or understandings between or among such stockholder, the beneficial owner, if any, on whose
behalf the proposal is being made, any control person, and any other person or persons (including their names) in connection with the
proposal of such business and any material interest of such stockholder, beneficial owner, or any control person, in such business, including
any anticipated benefit therefrom to such stockholder, beneficial owner, or control person; and
(7) all
of the other information required by Section 2.13(b)(6) above.
(d) Special
Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made
at a special meeting of stockholders called by the Board of Directors at which directors are to be elected pursuant to the Corporation’s
notice of meeting:
(1) by
or at the direction of the Board of Directors or any committee thereof; or
(2) provided
that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who
is a stockholder of record at the time the notice provided for in this Section 2.13(d) is delivered to the Secretary and at the time of
the special meeting of stockholders, who is entitled to vote at the meeting, and upon such election and who complies with the notice procedures
set forth in this Section 2.13.
In the event the Corporation calls a special
meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder entitled to
vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified
in the Corporation’s notice of meeting, if such stockholder delivers a stockholder’s notice that complies with the requirements
of Section 2.13(b) to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the
120th day prior to such special meeting and not later than the close of business on the later of: (x) the 90th day prior to
such special meeting; or (y) the tenth (10th) day following the date of the first Public Disclosure of the date of the special meeting
and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall an adjournment or postponement
(or the public announcement thereof) commence a new time period (or extend any notice time period) for the giving of a stockholder’s notice
as described above. The number of nominees a stockholder may nominate for election at a special meeting (or in the case of a stockholder
giving the notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the special meeting
on behalf of the beneficial owner) shall not exceed the number of directors to be elected by stockholders generally at such special meeting.
(e) Effect
of Noncompliance.
(1) Only
such persons who are nominated in accordance with the procedures set forth in this Section 2.13 shall be eligible to be elected at any
meeting of stockholders of the Corporation to serve as directors and only such other business shall be conducted at a meeting as shall
be brought before the meeting in accordance with the procedures set forth in this Section 2.13. The Chairman of the Board shall have the
power and duty to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed,
as the case may be, in accordance with the procedures set forth in this Section 2.13. If any proposed nomination was not made or proposed
in compliance with this Section 2.13, or other business was not made or proposed in compliance with this Section 2.13, or if any stockholder,
beneficial owner, control person, or any nominee for director acted contrary to any representation or other agreement required by this
Section 2.13 (or with any law, rule, or regulation identified therein) or provided false or misleading information to the Corporation,
then except as otherwise required by law, the chair of the meeting shall have the power and duty to declare that such nomination shall
be disregarded or that such proposed other business shall not be transacted. Notwithstanding anything in these Bylaws to the contrary,
unless otherwise required by law, if a Proposing Stockholder intending to propose business or make nominations at an annual meeting or
propose a nomination at a special meeting pursuant to this Section 2.13 does not comply with or provide the information required under
this Section 2.13 to the Corporation, including the updated information required by Section 2.13(b)(6)(ii), Section 2.13(b)(6)(iii) and
Section 2.13(b)(6)(iv) within five business days after the record date for such meeting or the evidence required by Section 2.13(e)(2)
by no later than five business days prior to the applicable meeting or the Proposing Stockholder (or a qualified representative of the
Proposing Stockholder) does not appear at the meeting to present the proposed business or nominations, such business or nominations shall
not be considered, notwithstanding that proxies in respect of such business or nominations may have been received by the Corporation.
(2) If
any stockholder provides notice pursuant to Rule 14a-19 under the Exchange Act, such stockholder shall deliver to the Corporation, no
later than five business days prior to the applicable meeting, reasonable evidence that it has met all of the applicable requirements
of Rule 14a-19 under the Exchange Act. Without limiting the other provisions and requirements of this Section 2.13, unless otherwise required
by law, if any Proposing Stockholder provides such notice and either (A) fails to comply with the requirements of Rule 14a-19 under the
Exchange Act, or (B) fails to provide reasonable evidence of such compliance as required by this Section 2.13(e)(2), then the Corporation
shall disregard any proxies or votes solicited for such stockholder’s nominees.
(f) Rule
14a-8. This Section 2.13 shall not apply to a proposal proposed to be made by a stockholder if the stockholder has notified the Corporation
of the stockholder’s intention to present the proposal at an annual or special meeting only pursuant to and in compliance with Rule 14a-8
under the Exchange Act and such proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies
for such meeting.
Article
III
DIRECTORS
3.1 Powers;
Number; Qualifications. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors,
except as may be otherwise provided by law or in the Certificate of Incorporation. The number of directors serving on the Board of Directors
shall be fixed from time to time by the Board of Directors. Directors need not be stockholders of the Corporation. The Board may be divided
into Classes as more fully described in the Certificate of Incorporation.
3.2 Election;
Term of Office; Resignation; Removal; Vacancies. Each director shall hold office until the next annual meeting of stockholders at
which his Class stands for election or until such director’s earlier resignation, removal from office, death or incapacity. Unless
otherwise provided in the Certificate of Incorporation, vacancies and newly created directorships resulting from any increase in the authorized
number of directors or from any other cause may be filled by a majority of the directors then in office, although less than a quorum,
or by a sole remaining director and each director so chosen shall hold office until the next election of the class for which such director
shall have been chosen, and until his successor shall be elected and qualified, or until such director’s earlier resignation, removal
from office, death or incapacity.
3.3 Nominations.
Nominations of persons for election to the Board of Directors of the Corporation at a meeting of stockholders of the Corporation may be
made at such meeting by or at the direction of the Board of Directors, by any committee or persons appointed by the Board of Directors
or by any stockholder of the Corporation entitled to vote for the election of directors at the meeting who complies with the notice procedures
set forth in this Article III, Section 3.3. Such nominations by any stockholder shall be made pursuant to timely notice in writing to
the Secretary of the Corporation. To be timely, a stockholder’s notice shall be delivered to or mailed and received at the principal
executive offices of the Corporation not less than sixty (60) days nor more than ninety (90) days prior to the meeting; provided however,
that in the event that less than seventy (70) days notice or prior public disclosure of the date of the meeting is given or made to stockholders,
notice by the stockholder, to be timely, must be received no later than the close of business on the tenth (10th) day following the day
on which such notice of the date of the meeting was mailed or such public disclosure was made, whichever first occurs. Such stockholder’s
notice to the Secretary shall set forth (i) as to each person whom the stockholder proposes to nominate for election or reelection as
a director, (a) the name, age, business address and residence address of the person, (b) the principal occupation or employment of the
person, (c) the class and number of shares of capital stock of the Corporation which are beneficially owned by the person, and (d) any
other information relating to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant
to the Rules and Regulations of the Securities and Exchange Commission under Section 14 of the Securities Exchange Act of 1934, as amended,
and (ii) as to the stockholder giving the notice (a) the name and record address of the stockholder and (b) the class and number of shares
of capital stock of the Corporation which are beneficially owned by the stockholder. The Corporation may require any proposed nominee
to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee
to serve as a director of the Corporation. No person shall be eligible for election as a director of the Corporation unless nominated
in accordance with the procedures set forth herein. The officer of the Corporation presiding at an annual meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should
so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
3.4 Meetings.
The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware.
The first meeting of each newly elected Board of Directors shall be held immediately after and at the same place as the meeting of the
stockholders at which it is elected and no notice of such meeting shall be necessary to the newly elected directors in order to legally
constitute the meeting, provided a quorum shall be present. Regular meetings of the Board of Directors may be held without notice at such
time and place as shall from time to time be determined by the Board of Directors. Special meetings of the Board of Directors may be called
by the President or a majority of the entire Board of Directors. Notice thereof stating the place, date and hour of the meeting shall
be given to each director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone, facsimile,
telegram or e-mail on twenty-four (24) hours notice, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
3.5 Quorum.
Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws, at all meetings of the Board
of Directors or any committee thereof, a majority of the entire Board of Directors or such committee, as the case may be, shall constitute
a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors or of any committee
thereof, a majority of the directors present thereat may adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present.
3.6 Organization
of Meetings. The Board of Directors shall elect one of its members to be Chairman of the Board of Directors. The Chairman of the Board
of Directors shall lead the Board of Directors in fulfilling its responsibilities as set forth in these Bylaws, including its responsibility
to oversee the performance of the Corporation, and shall determine the agenda and perform all other duties and exercise all other powers
which are or from time to time may be delegated to him or her by the Board of Directors.
Meetings of the Board of Directors
shall be presided over by the Chairman of the Board of Directors, or in his or her absence, by the President, or in the absence of the
Chairman of the Board of Directors and the President by such other person as the Board of Directors may designate or the members present
may select.
3.7 Actions
of Board of Directors Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting,
if all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing or by electronic transmission,
and the writing or writings or electronic transmission or transmissions are filled with the minutes of proceedings of the Board of Directors
or committee.
3.8 Removal
of Directors by Stockholders. The entire Board of Directors or any individual Director may be removed from office for cause by a majority
vote of the holders of the outstanding shares then entitled to vote at an election of directors. In case the Board of Directors or any
one or more Directors be so removed, new Directors may be elected at the same time for the unexpired portion of the full term of the Director
or Directors so removed.
3.9 Resignations.
Any Director may resign at any time by submitting his written resignation to the Board of Directors or Secretary of the Corporation. Such
resignation shall take effect at the time of its receipt by the Corporation unless another time be fixed in the resignation, in which
case it shall become effective at the time so fixed. The acceptance of a resignation shall not be required to make it effective.
3.10 Committees.
The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation.
In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided by law and in the resolution
of the Board of Directors establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors
in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers
which may require it; but no such committee shall have the power or authority in reference to amending the Certificate of Incorporation,
adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially
all of the Corporation’s property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation
of a dissolution or amending the Bylaws of the Corporation; and, unless the resolution expressly so provides, no such committee shall
have the power or authority to declare a dividend or to authorize the issuance of stock or to adopt a certificate of ownership and merger.
Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.
3.11 Compensation.
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 amount
(in cash or other form of consideration) 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
special or standing committees may be allowed like compensation for attending committee meetings.
3.12 Interested
Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation
and any other corporation, partnership, association, or other organization in which one or more of its directors or officers are directors
or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer
is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction,
or solely because his or their votes are counted for such purpose, if (i) the material facts as to his or their relationship or interest
and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (ii) the material facts as to his or their relationship or interest
and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction
is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board of Directors, a committee thereof or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes
the contract or transaction.
3.13 Meetings
by Means of Conference Telephone. Members of the Board of Directors or any committee designed by the Board of Directors may participate
in a meeting of the Board of Directors or of a committee of the Board of Directors by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this
subsection shall constitute presence in person at such meeting.
Article
IV
OFFICERS
4.1 General.
The officers of the Corporation shall be elected by the Board of Directors and may consist of: a Chairman of the Board, Vice Chairman
of the Board, Chief Executive Officer, President, Chief Financial Officer, Secretary and Treasurer. The Board of Directors, in its discretion,
may also elect one or more Vice Presidents (including Executive Vice Presidents and Senior Vice Presidents), Assistant Secretaries, Assistant
Treasurers, a Controller and such other officers as in the judgment of the Board of Directors may be necessary or desirable. Any number
of offices may be held by the same person and more than one person may hold the same office, unless otherwise prohibited by law, the Certificate
of Incorporation or these Bylaws. The officers of the Corporation need not be stockholders of the Corporation, nor need such officers
be directors of the Corporation.
4.2 Election.
The Board of Directors at its first meeting held after each annual meeting of stockholders shall elect the officers of the Corporation
who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified,
or until their earlier resignation or removal. Except as otherwise provided in this Article IV, any officer elected by the Board of Directors
may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors. The salaries of all officers who are directors of the Corporation shall be fixed
by the Board of Directors.
4.3 Voting
Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President or any Vice President,
and any such officer may, in the name and on behalf of the Corporation, take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any
such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such securities and which, as the
owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to
time confer like powers upon any other person or persons.
4.4 Chief
Executive Officer. Subject to the provisions of these Bylaws and to the direction of the Board of Directors, the Chief Executive Officer
shall have ultimate authority for decisions relating to the general management and control of the affairs and business of the Corporation
and shall perform such other duties and exercise such other powers which are or from time to time may be delegated to him or her by the
Board of Directors or these Bylaws, all in accordance with basic policies as established by and subject to the oversight of the Board
of Directors.
4.5 President.
At the request of the Chief Executive Officer, or in the absence of the Chief Executive Officer, or in the event of his or her inability
or refusal to act, the President shall perform the duties of the Chief Executive Officer, and when so acting, shall have all the powers
of and be subject to all the restrictions upon such office. The President shall perform such other duties and have such other powers as
the Board of Directors from time to time may prescribe.
4.6 Chief
Financial Officer. The Chief Financial Officer shall have general supervision, direction and control of the financial affairs of the
Corporation and shall perform such other duties and exercise such other powers which are or from time to time may be delegated to him
or her by the Board of Directors or these Bylaws, all in accordance with basic policies as established by and subject to the oversight
of the Board of Directors. In the absence of a named Treasurer, the Chief Financial Officer shall also have the powers and duties of the
Treasurer as hereinafter set forth and shall be authorized and empowered to sign as Treasurer in any case where such officer’s signature
is required.
4.7 Vice
Presidents. At the request of the President or in the absence of the President, or in the event of his or her inability or refusal
to act, the Vice President or the Vice Presidents if there is more than one (in the order designated by the Board of Directors) shall
perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon such
office. Each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may
prescribe. If there be no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of
the President or in the event of the inability or refusal of such officer to act, shall perform the duties of such office, and when so
acting, shall have all the powers of and be subject to all the restrictions upon such office.
4.8 Secretary.
The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings thereat
in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees when required.
The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the Board of Directors or the President, under whose supervision the Secretary
shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special
meetings of the Board of Directors, then any Assistant Secretary shall perform such actions. If there be no Assistant Secretary, then
the Board of Directors or the President may choose another officer to cause such notice to be given. The Secretary shall have custody
of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to
any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such
Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to
attest the affixing by his signature. The Secretary shall see that all books, reports, statements, certificates and other documents and
records required by law to be kept or filed are properly kept or filed, as the case may be.
4.9 Treasurer.
The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements
in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation
in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may
be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of
Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of
the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in
such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties
of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation.
4.10 Assistant
Secretaries. Except as may be otherwise provided in these Bylaws, Assistant Secretaries, if there be any, shall perform such duties
and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there
be one, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall perform the duties
of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.
4.11 Assistant
Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned
to them by the Board of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer
or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall
give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful
performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging
to the Corporation.
4.12 Controller.
The Controller shall establish and maintain the accounting records of the Corporation in accordance with generally accepted accounting
principles applied on a consistent basis, maintain proper internal control of the assets of the Corporation and shall perform such other
duties as the Board of Directors, the President or any Vice President of the Corporation may prescribe.
4.13 Other
Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the
power to choose such other officers and to prescribe their respective duties and powers.
4.14 Vacancies.
The Board of Directors shall have the power to fill any vacancies in any office occurring from whatever reason.
4.15 Resignations.
Any officer may resign at any time by submitting his written resignation to the Corporation. Such resignation shall take effect at the
time of its receipt by the Corporation, unless another time be fixed in the resignation, in which case it shall become effective at the
time so fixed. The acceptance of a resignation shall not be required to make it effective.
4.16 Removal.
Subject to the provisions of any employment agreement approved by the Board of Directors, any officer of the Corporation may be removed
at any time, with or without cause, by the Board of Directors.
Article
V
CAPITAL STOCK
5.1 Form
of Certificates. The shares of stock in the Corporation shall be represented by certificates, provided that the Board of Directors
may provide by resolution or resolutions that some or all of any or all classes or series of the Corporation’s stock shall be in
uncertificated form. Stock certificates shall be in such forms as the Board of Directors may prescribe and signed by the Chairman of the
Board, President or a Vice President and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation.
5.2 Signatures.
Any or all of the signatures on a stock certificate may be a facsimile, including, but not limited to, signatures of officers of the Corporation
and countersignatures of a transfer agent or registrar. In case an officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate
is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at
the date of issue.
5.3 Lost
Certificates. The Board of Directors may direct a new stock certificate or certificates to be issued in place of any stock certificate
or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new stock
certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of
such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such manner as the Board of Directors
shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against
the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
5.4 Transfers.
Stock of the Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Transfers of certificated stock shall
be made on the books of the Corporation only by the person named in the certificate or by such person’s attorney lawfully constituted
in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall be issued. Transfers
of uncertificated stock shall be made on the books of the Corporation only by the person then registered on the books of the Corporation
as the owner of such shares or by such person’s attorney lawfully constituted in writing and written instruction to the Corporation
containing such information as the Corporation or its agents may prescribe. No transfer of uncertificated stock shall be valid as against
the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and
to whom transferred. The Corporation shall have no duty to inquire into adverse claims with respect to any stock transfer unless (a) the
Corporation has received a written notification of an adverse claim at a time and in a manner which affords the Corporation a reasonable
opportunity to act on it prior to the issuance of a new, reissued or re-registered share certificate, in the case of certificated stock,
or entry in the stock record books of the Corporation, in the case of uncertificated stock, and the notification identifies the claimant,
the registered owner and the issue of which the share or shares is a part and provides an address for communications directed to the claimant;
or (b) the Corporation has required and obtained, with respect to a fiduciary, a copy of a will, trust, indenture, articles of co-partnership,
Bylaws or other controlling instruments, for a purpose other than to obtain appropriate evidence of the appointment or incumbency of the
fiduciary, and such documents indicate, upon reasonable inspection, the existence of an adverse claim. The Corporation may discharge any
duty of inquiry by any reasonable means, including notifying an adverse claimant by registered or certified mail at the address furnished
by him or, if there be no such address, at his residence or regular place of business that the security has been presented for registration
of transfer by a named person, and that the transfer will be registered unless within thirty days from the date of mailing the notification,
either (a) an appropriate restraining order, injunction or other process issues from a court of competent jurisdiction; or (b) an indemnity
bond, sufficient in the Corporation’s judgment to protect the Corporation and any transfer agent, registrar or other agent of the
Corporation involved from any loss which it or they may suffer by complying with the adverse claim, is filed with the Corporation.
5.5 Fixing
Record Date. In order that the Corporation may determine the stockholders entitled to notice or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled 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 upon which the resolution fixing the record is adopted by the Board of Directors, and which record date shall not
be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than ten (10) days after the date upon which
the resolution fixing the record date of action with a meeting is adopted by the Board of Directors, nor more than sixty (60) days prior
to any other action. If no record date is fixed:
(a) 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.
(b) The
record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action
by the Board of Directors is necessary, shall be the first date on which a signed written consent is delivered to the Corporation.
(c) The
record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors
adopts the 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.
5.6 Registered
Stockholders. Prior to due presentment for transfer of any share or shares, the Corporation shall treat the registered owner thereof
as the person exclusively entitled to vote, to receive notifications and to all other benefits of ownership with respect to such share
or shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State Delaware.
Article
VI
NOTICES
6.1 Form
of Notice. Notices to directors and stockholders other than notices to directors of special meetings of the board of Directors which
may be given by any means stated in Article III, Section 3.4, shall be in writing and delivered personally or mailed to the directors
or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when
the same shall be mailed. Notice to directors may also be given by telegram.
6.2 Waiver
of Notice. Whenever any notice is required to be given under the provisions of law or the Certificate of Incorporation or by these
Bylaws of the Corporation, a written waiver, signed by the person or persons entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting,
except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of
any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any
regular, or special meeting of the stockholders, Directors, or members of a committee of Directors need be specified in any written waiver
of notice unless so required by the Certificate of Incorporation.
Article
VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
7.1 The
Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by
him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was unlawful.
7.2 The
Corporation shall indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee
or agent of another Corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees)
actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
7.3 To
the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in Sections 7.1 or 7.2 of this Article, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection
therewith.
7.4 Any
indemnification under sections 7.1 or 7.2 of this Article (unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in such section. Such determination shall be made:
(a) By
the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding,
or
(b) If
such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion, or
(c) By
the stockholders.
7.5 Expenses
(including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he
is not entitled to be indemnified by the Corporation as authorized in this Section. Such expenses (including attorneys’ fees) incurred
by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems appropriate.
7.6 The
indemnification and advancement of expenses provided by, or granted pursuant to the other sections of this Article shall not be deemed
exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity
while holding such office.
7.7 The
Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such
liability under the provisions of this Article.
7.8 For
purposes of this Article, references to “the Corporation” shall include, in addition to the resulting Corporation, any constituent
Corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director,
officer employee or agent of such constituent Corporation, or is or was serving at the request of such constituent Corporation as a director,
officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position
under this Article with respect to the resulting or surviving Corporation as he would have with respect to such constituent Corporation
of its separate existence had continued.
7.9 For
purposes of this Article, references to “other enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the
request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes
duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants
or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the
Corporation” as referred to in this Article.
7.10 The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall, unless otherwise provided when authorized
or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
7.11 No
director or officer of the Corporation shall be personally liable to the Corporation or to any stockholder of the Corporation for monetary
damages for breach of fiduciary duty as a director or officer, provided that this provision shall not limit the liability of a director
or officer (i) for any breach of the director’s or the officer’s duty of loyalty to the Corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174
of the General Corporation Law of Delaware, or (iv) for any transaction from which the director or officer derived an improper personal
benefit.
Article
VIII
GENERAL PROVISIONS
8.1 Reliance
on Books and Records. Each Director, each member of any committee designated by the Board of Directors, and each officer of the Corporation,
shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account or other records of the
Corporation, including reports made to the Corporation by any of its officers, by an independent certified public accountant, or by an
appraiser selected with reasonable care.
8.2 Maintenance
of Books and Records. Any records administered by or on behalf of the Corporation in the regular course of its business, including
its stock ledger, books of account, and minute books, may be maintained on any information storage device, method, or one or more electronic
networks or databases (including one or more distributed electronic networks or databases); provided that the records so kept can be converted
into clearly legible paper form within a reasonable time, and, with respect to the stock ledger, the records so kept comply with Section
224 of the DGCL. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records
pursuant to applicable law.
8.3 Dividends.
Subject to the provisions of the Certificate of Incorporation, if any, 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 in shares
of the capital stock, subject to the provisions of the Certificate of Incorporation. Before payment of any dividend, there may be set
aside out of any funds of the Corporation available for dividends such sum or sums as the Directors from time to time, in their absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining
any property of the Corporation, or for such other purpose as the Directors shall think conducive to the interest of the Corporation,
and the Directors may modify or abolish any such reserve in the manner in which it was created.
8.4 Checks.
All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other persons as the
Board of Directors may from time to time designate.
8.5 Fiscal
Year. The fiscal year of the Corporation shall be as determined by the Board of Directors. If the Board of Directors shall fail to
do so, the President shall fix the fiscal year.
8.6 Seal.
The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate
Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced.
8.7 Amendments.
The Board of Directors shall have the power to adopt, amend or repeal the Bylaws of the Corporation by the affirmative action of a majority
of its members. The Bylaws may be adopted, amended or repealed by the affirmative vote of two-thirds of the stock issued and outstanding
and entitled to vote at any regular meeting of the stockholders or at any special meeting of the stockholders if notice of such proposed
adoption, amendment or repeal be contained in the notice of such meeting.
8.8 Interpretation
of Bylaws. All words, terms and provisions of these Bylaws shall be interpreted and defined by and in accordance with the General
Corporation Law of the State of Delaware, as amended, and as amended from time to time hereafter.
8.9 Forum
for Adjudication of Securities Act of 1933 Claims. Unless the Corporation consents in writing to the selection of an alternative forum,
the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting
a cause of action arising under the Securities Act of 1933. 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 Section 8.9.
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