This prospectus supplement
supplements the prospectus dated February 16, 2021 (as supplemented or amended from time to time, the “Prospectus”), which
forms a part of our registration statement on Form S-1 (No. 333-252515). This prospectus supplement is being filed to update and
supplement the information in the Prospectus with the information contained in our current report on Form 8-K, filed with the Securities
and Exchange Commission on February 3, 2022 (the “Current Report”). Accordingly, we have attached the Current Report to this
prospectus supplement. The Prospectus and this prospectus supplement relate to the issuance by us of up to an aggregate of up to
16,279,253 shares of our Class A common stock, $0.0001 par value per share (“Common Stock”), which consists of (i) up
to 6,000,000 shares of Common Stock that are issuable upon the exercise of 6,000,000 warrants (the “Private Warrants”) originally
issued in a private placement in connection with the initial public offering of Live Oak Acquisition Corp., our predecessor company (“Live
Oak”), (ii) up to 10,000,000 shares of Common Stock that are issuable upon the exercise of 10,000,000 warrants (the “Public
Warrants” and, together with the Private Warrants, the “Warrants”) originally issued in the initial public offering
of Live Oak and (iii) up to 279,253 shares of Common Stock issuable upon exercise of Non-Plan Legacy Danimer Options. We will receive
the proceeds from any exercise of any Warrants for cash.
The Prospectus and this prospectus
supplement also relate to the offer and sale from time to time by the selling securityholders named in the Prospectus (the “Selling
Securityholders”), or their permitted transferees, of (i) up to 32,435,961 shares of Common Stock (including up to 6,000,000
shares of Common Stock that may be issued upon exercise of the Private Warrants) and (ii) up to 6,000,000 Private Warrants.
We will not receive any proceeds from the sale of shares of Common Stock or the Private Warrants by the Selling Securityholders pursuant
to the Prospectus and this prospectus supplement.
Our registration of the securities
covered by the Prospectus and this prospectus supplement does not mean that the Selling Securityholders will offer or sell any of the
shares. The Selling Securityholders may sell the shares of Common Stock covered by the Prospectus and this prospectus supplement in a
number of different ways and at varying prices. We provide more information about how the Selling Securityholders may sell the shares
in the section entitled “Plan of Distribution.”
Our Common Stock is listed
on The New York Stock Exchange under the symbol “DNMR”. On February 3, 2022, the closing price of our Common Stock was $4.06.
Our Public Warrants were previously traded on The New York Stock Exchange under the symbol “DNMR WS”; however, the Public
Warrants ceased trading on the New York Stock Exchange and were delisted following their redemption.
This prospectus supplement
updates and supplements the information in the Prospectus and is not complete without, and may not be delivered or utilized except in
combination with, the Prospectus, including any amendments or supplements thereto. This prospectus supplement should be read in conjunction
with the Prospectus and if there is any inconsistency between the information in the Prospectus and this prospectus supplement, you should
rely on the information in this prospectus supplement.
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:
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).
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. ☐
On January 28, 2022, the Board of Directors (the
“Board”) of Danimer Scientific, Inc. (the “Company”) amended and restated the Company’s Amended and Restated
Bylaws (as so amended and restated, the “Bylaws”), effective January 28, 2022, to make certain updates and conforming and
technical changes, including, among other things, the following: (a) enhancing the advance notice provisions and clarification of the
procedures for the Company’s stockholders seeking to present business at a meeting of the Company’s stockholders such as nominating
director candidates and/or submitting stockholder proposals; (b) giving the Board the power to solicit additional information reasonably
foreseeable to be material to a stockholder’s decision about the nominees or a stockholder proposal, as part of the updated advance
notice provisions; (c) allowing the Board to postpone, reschedule or cancel a previously scheduled annual meeting of stockholders; (d)
clarifying that if a quorum is present at the original duly organized meeting of stockholders, it shall also be deemed present at an adjourned
session of such meeting; and (e) adding a new Article IX to the Bylaws, which provides for certain emergency measures to be taken by “designated
officers” if a quorum of directors is not able to be convened to transact business in the event of specified emergencies.
The Bylaws are filed with this Current Report
on Form 8-K as Exhibit 3.1 and are incorporated by reference herein. The foregoing summary of amendments to the Company’s Amended
and Restated Bylaws is qualified in its entirety by reference to the full text of the Bylaws.
The Company is also filing
this Form 8-K to update the following risk factor previously disclosed in its Form 8-K filed with the SEC on December 13, 2021, which
risk factor, as so updated, supplements the risk factors contained in the Company’s filings under the Securities Exchange Act of
1934, as amended, and should be read in conjunction with those other risk factors.
Short selling is the
practice of selling securities that a seller does not own but rather has borrowed from a third party with the intention of buying identical
securities back at a later date to return to the lender. Short sellers hope to profit from a decline in the value of the
securities between the sale of the borrowed securities and the purchase of the replacement securities, as short sellers expect
to pay less in that purchase than they received in the sale. As it is in short sellers’ interest for the price of the
security to decline, many short sellers publish, or arrange for the publication of, negative opinions and allegations regarding
the relevant issuer and its business prospects in order to create negative market momentum and generate profits for themselves after selling
a security short. These short attacks have, in the past, led to selling of shares in the market.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, as amended, the Company has duly caused this report to be signed on its behalf by the undersigned hereunto duly
authorized.
Dated: February 3, 2022
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DANIMER SCIENTIFIC, INC.
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By:
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/s/ John A. Dowdy, III
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Name:
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John A. Dowdy, III
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Title:
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Chief Financial Officer
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Exhibit 3.1
sECOND
amended and restated BY LAWS
OF
Danimer
Scientific, Inc.
(THE
“CORPORATION”)
Adopted as of January 28, 2022
ARTICLE I
OFFICES
Section 1.1. Registered
Office. The registered office of the Corporation within the State of Delaware shall be located at either (a) the principal place of
business of the Corporation in the State of Delaware or (b) the office of the corporation or individual acting as the Corporation’s
registered agent in Delaware.
Section 1.2. Additional
Offices. The Corporation may, in addition to its registered office in the State of Delaware, have such other offices and places of
business, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the “Board”) may from
time to time determine or as the business and affairs of the Corporation may require.
ARTICLE II
STOCKHOLDERS MEETINGS
Section 2.1. Annual Meetings.
The annual meeting of stockholders shall be held at such place, either within or without the State of Delaware, and time and on such date
as shall be determined by the Board and stated in the notice of the meeting, provided that the Board may in its sole discretion determine
that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section
10.5(a). At each annual meeting, the stockholders entitled to vote on such matters shall elect those directors of the Corporation
to fill any term of a directorship that expires on the date of such annual meeting and may transact any other business as may properly
be brought before the meeting. The Board may, for any reason and at any time prior to the holding of any annual meeting of stockholders,
postpone, reschedule or cancel any previously scheduled annual meeting of stockholders.
Section 2.2. Special Meetings.
Subject to the rights of the holders of any outstanding series of the preferred stock of the Corporation (“Preferred Stock”),
and to the requirements of applicable law, special meetings of stockholders, for any purpose or purposes, may be called only by the Chairman
of the Board, Chief Executive Officer, or the Board pursuant to a resolution adopted by a majority of the Board, and may not be called
by any other person. Special meetings of stockholders shall be held at such place, either within or without the State of Delaware, and
at such time and on such date as shall be determined by the Board and stated in the Corporation’s notice of the meeting, provided
that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by
means of remote communication pursuant to Section 10.5(a).
Section 2.3. Notices.
Written notice of each stockholders meeting stating the place, if any, date, and time of the meeting, and the means of remote communication,
if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting and the record date for
determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders
entitled to notice of the meeting, shall be given in the manner permitted by Section 10.3 to each stockholder entitled to vote
thereat as of the record date for determining the stockholders entitled to notice of the meeting, by the Corporation not less than 10
nor more than 60 days before the date of the meeting unless otherwise required by the General Corporation Law of the State of Delaware
(the “DGCL”). If said notice is for a stockholders meeting other than an annual meeting, it shall in addition state the purpose
or purposes for which the meeting is called, and the business transacted at such meeting shall be limited to the matters so stated in
the Corporation’s notice of meeting (or any supplement thereto). Any meeting of stockholders as to which notice has been given may
be postponed, and any meeting of stockholders as to which notice has been given may be cancelled, by the Board upon public announcement
(as defined in Section 2.7(c)) given before the date previously scheduled for such meeting.
Section 2.4. Quorum.
Except as otherwise provided by applicable law, the Corporation’s Certificate of Incorporation, as the same may be amended or restated
from time to time (the “Certificate of Incorporation”) or these By Laws, the presence, in person or by proxy, at a stockholders
meeting of the holders of shares of outstanding capital stock of the Corporation representing a majority of the voting power of all outstanding
shares of capital stock of the Corporation entitled to vote at such meeting shall constitute a quorum for the transaction of business
at such meeting, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of
shares representing a majority of the voting power of the outstanding shares of such class or series shall constitute a quorum of such
class or series for the transaction of such business. Whether or not a quorum shall be present or represented by proxy at any meeting
of the stockholders of the Corporation, the chairman of the meeting may adjourn the meeting from time to time in the manner provided in
Section 2.6. The stockholders present at a duly convened meeting may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation or to another
corporation, if a majority of the voting power of the shares entitled to vote in the election of directors of such other corporation is
held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however,
that the foregoing shall not limit the right of the Corporation or any such other corporation to vote shares held by it in a fiduciary
capacity. If a quorum is present at the original duly organized meeting of stockholders, it shall also be deemed present at an adjourned
session of such meeting.
Section 2.5. Voting of
Shares.
(a) Voting Lists. The
Secretary of the Corporation (the “Secretary”) shall prepare, or shall cause the officer or agent who has charge of the stock
ledger of the Corporation to prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders
of record entitled to vote at such meeting; provided, however, that if the record date for determining the stockholders entitled to vote
is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth day before the
meeting date, arranged in alphabetical order and showing the address and the number and class of shares registered in the name of each
stockholder. Nothing contained in this Section 2.5(a) shall require the Corporation to include electronic mail addresses or other
electronic contact information on such list. 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 10 days prior to the meeting: (i) on a reasonably accessible electronic
network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during
ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the
list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to
stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If a meeting of stockholders is
to be held solely by means of remote communication as permitted by Section 10.5(a), the list shall be open to the examination of
any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access
such list shall be provided with the notice of meeting. The stock ledger shall be the only evidence as to who are the stockholders entitled
to examine the list required by this Section 2.5(a) or to vote in person or by proxy at any meeting of stockholders.
(b) Manner of Voting.
At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized by the Board, the voting
by stockholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot submitted by electronic
transmission (as defined in Section 10.3), provided that any such electronic transmission must either set forth or be submitted
with information from which the Corporation can determine that the electronic transmission was authorized by the stockholder or proxy
holder. The Board, in its discretion, or the chairman of the meeting of stockholders, in such person’s discretion, may require that
any votes cast at such meeting shall be cast by written ballot.
(c) Proxies. 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
another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from
its date, unless the proxy provides for a longer period. Proxies need not be filed with the Secretary until the meeting is called to order,
but shall be filed with the Secretary before being voted. Without limiting the manner in which a stockholder may authorize another person
or persons to act for such stockholder as proxy, either of the following shall constitute a valid means by which a stockholder may grant
such authority. No stockholder shall have cumulative voting rights.
(i) A stockholder may execute
a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by the stockholder
or such stockholder’s authorized officer, director, employee or agent signing such writing or causing such person’s signature
to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize
another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission
to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such electronic transmission
must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized
by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another
person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original writing or transmission for any
and all purposes for which the original writing or transmission could be used; provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire original writing or transmission.
(d) Required Vote. Subject
to the rights of the holders of one or more series of Preferred Stock, voting separately by class or series, to elect directors pursuant
to the terms of one or more series of Preferred Stock, at all meetings of stockholders at which a quorum is present, the election of directors
shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and
entitled to vote thereon. All other matters presented to the stockholders at a meeting at which a quorum is present shall be determined
by the vote of a majority of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled
to vote thereon, unless the matter is one upon which, by applicable law, the Certificate of Incorporation, these By Laws or applicable
stock exchange rules, a different vote is required, in which case such provision shall govern and control the decision of such matter.
(e) Inspectors of Election.
The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons as inspectors of election,
who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such meeting of stockholders
or any adjournment thereof and to make a written report thereof. The Board may appoint one or more persons as alternate inspectors to
replace any inspector who fails to act. If no inspectors of election or alternates are appointed by the Board, the chairman of the meeting
shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign
an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors
shall ascertain and report the number of outstanding shares and the voting power of each; determine the number of shares present in person
or represented by proxy at the meeting and the validity of proxies and ballots; count all votes and ballots and report the results; determine
and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and certify
their determination of the number of shares represented at the meeting and their count of all votes and ballots. No person who is a candidate
for an office at an election may serve as an inspector at such election. Each report of an inspector shall be in writing and signed by
the inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector,
the report of a majority shall be the report of the inspectors.
Section 2.6. Adjournments.
Any meeting of stockholders, annual or special, may be adjourned by the chairman of the meeting, from time to time, whether or not there
is a quorum, to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if the date, time, and
place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present
in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting
the stockholders, or the holders of any class or series of stock entitled to vote separately as a class, as the case may be, may transact
any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders
entitled to vote is fixed for the adjourned meeting, the Board shall fix a new record date for notice of such adjourned meeting in accordance
with Section 10.2, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned
meeting as of the record date fixed for notice of such adjourned meeting.
Section 2.7. Advance Notice
for Business.
(a) Annual Meetings of Stockholders.
No business may be transacted at an annual meeting of stockholders, other than business that is either (i) specified in the Corporation’s
notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii) otherwise properly brought before the annual
meeting by or at the direction of the Board or (iii) otherwise properly brought before the annual meeting by any stockholder of the Corporation
(x) who is a stockholder of record entitled to vote at such annual meeting on the date of the giving of the notice provided for in this
Section 2.7(a) and on the record date for the determination of stockholders entitled to vote at such annual meeting and (y) who
complies with the notice procedures set forth in this Section 2.7(a). Notwithstanding anything in this Section 2.7(a) to
the contrary, only persons nominated for election as a director to fill any term of a directorship that expires on the date of the annual
meeting pursuant to Section 3.2 will be considered for election at such meeting.
(i) In addition to any other
applicable requirements, without qualification, for business (other than nominations) to be properly brought before an annual meeting
by a stockholder, such stockholder must (a) have given Timely Notice (as defined below) thereof in proper written form to the Secretary
and such business must otherwise be a proper matter for stockholder action, and (b) provide any updates or supplements to such notice
at the times and in the forms required by these By Laws. A stockholder’s notice to the Secretary with respect to such business,
to be timely, must be received by the Secretary at the principal executive offices of the Corporation not later than the close of business
on the 90th day nor earlier than the close of business on the 120th day before the anniversary date of the immediately preceding annual
meeting of stockholders; provided, however, that in the event that the annual meeting is more than 30 days before or more than 60 days
after such anniversary date (or if there has been no prior annual meeting), notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the 120th day before the meeting and not later than the later of (x) the close of business on
the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date
of the annual meeting is first made by the Corporation (such notice within such time periods, “Timely Notice”). The public
announcement of an adjournment or postponement of an annual meeting shall not commence a new time period (or extend any time period) for
the giving of a stockholder’s notice as described in this Section 2.7(a).
(ii) To be in proper form
for purposes of this Section 2.7(a), a stockholder’s notice to the Secretary pursuant to this Section 2.7(a), shall
be required to set forth:
(A)
As to each Proposing Person (as defined below), (1) the name and address of such Proposing Person (including, if applicable, the name
and address that appear on the Corporation’s books and records), (2) the class or series and number of shares of the Corporation
that are, directly or indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), by such Proposing Person, except that such Proposing Person shall in all events
be deemed to beneficially own any shares of any class or series of the Corporation as to which such Proposing Person has a right to acquire
beneficial ownership at any time in the future, (3) the date or dates the shares in the foregoing clause (2) were acquired, (4) the investment
intent of each such acquisition in the foregoing clause (3), and (5) the nominee holder for, and number of, any Corporation securities
owned beneficially but not of record by the Proposing Person (the disclosures to be made pursuant to the foregoing clauses are referred
to as “Stockholder Information”);
(B) As
to each Proposing Person, (1) any derivative, swap or other transaction or series of transactions engaged in, directly or indirectly,
by such Proposing Person, the purpose or effect of which is to give such Proposing Person economic risk similar to ownership of shares
of any class or series of the Corporation, including due to the fact that the value of such derivative, swap or other transactions are
determined by reference to the price, value or volatility of any shares of any class or series of the Corporation, or which derivative,
swap or other transactions provide, directly or indirectly, the opportunity to profit from any increase in the price or value of shares
of any class or series of the Corporation (“Synthetic Equity Interests”), which Synthetic Equity Interests shall be disclosed
without regard to whether (x) the derivative, swap or other transactions convey any voting rights in such shares to such Proposing Person,
(y) the derivative, swap or other transactions are required to be, or are capable of being, settled through delivery of such shares or
(z) such Proposing Person may have entered into other transactions that hedge or mitigate the economic effect of such derivative, swap
or other transactions, (2) any proxy (other than a revocable proxy or consent given in response to a solicitation made pursuant to, and
in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed on Schedule 14A), agreement, arrangement,
understanding or relationship pursuant to which such Proposing Person has or shares a right to vote any shares of any class or series
of the Corporation, (3) any agreement, arrangement, understanding or relationship, including any repurchase or similar so-called “stock
borrowing” agreement or arrangement, engaged in, directly or indirectly, by such Proposing Person, the purpose or effect of which
is to mitigate loss to, reduce the economic risk (of ownership or otherwise) of shares of any class or series of the Corporation by, manage
the risk of share price changes for, or increase or decrease the voting power of, such Proposing Person with respect to the shares of
any class or series of the Corporation, or which provides, directly or indirectly, the opportunity to profit from any decrease in the
price or value of the shares of any class or series of the Corporation (“Short Interests”), (4) all trades in shares of any
class or series of the Corporation, Synthetic Equity Interests and/or Short Interests made in the past two (2) years, (5) any rights to
dividends on the shares of any class or series of the Corporation owned beneficially by such Proposing Person that are separated or separable
from the underlying shares of the Corporation, (6) any performance related fees (other than an asset based fee) that such Proposing Person
is entitled to based on any increase or decrease in the price or value of shares of any class or series of the Corporation, or any Synthetic
Equity Interests or Short Interests, if any, (7) (x) if such Proposing Person is not a natural person, the identity of the natural person
or persons associated with such Proposing Person responsible for the formulation of and decision to propose the business to be brought
before the meeting (such person or persons, the “Responsible Person”), the manner in which such Responsible Person
was selected, any fiduciary duties owed by such Responsible Person to the equity holders or other beneficiaries of such Proposing Person,
the qualifications and background of such Responsible Person and any material interests or relationships of such Responsible Person that
are not shared generally by any other record or beneficial holder of the shares of any class or series of the Corporation and that reasonably
could have influenced the decision of such Proposing Person to propose such business to be brought before the meeting, and (y) if such
Proposing Person is a natural person, the qualifications and background of such natural person and any material interests or relationships
of such natural person that are not shared generally by any other record or beneficial holder of the shares of any class or series of
the Corporation and that reasonably could have influenced the decision of such Proposing Person to propose such business to be brought
before the meeting, (8) any significant equity interests or any Synthetic Equity Interests or Short Interests in any principal competitor
of the Corporation held by such Proposing Persons, (9) any direct or indirect interest of such Proposing Person in any contract with the
Corporation, any affiliate of the Corporation or any principal competitor of the Corporation (including, in any such case, any employment
agreement, collective bargaining agreement or consulting agreement), (10) any pending or threatened litigation in which such Proposing
Person is a party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation,
(11) any material transaction occurring during the prior twelve (12) months between such Proposing Person, on the one hand, and the Corporation,
any affiliate of the Corporation or any principal competitor of the Corporation, on the other hand, (12) a summary of any material discussions
regarding the business proposed to be brought before the meeting (x) between or among any of the Proposing Persons or (y) between or among
any Proposing Person and any other record or beneficial holder of the shares of any class or series of the Corporation (including their
names) and (13) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or
other filing required to be made in connection with solicitations of proxies or consents by such Proposing Person in support of the business
proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act (the disclosures to be made pursuant to the foregoing
clauses (1) through (13) are referred to as “Disclosable Interests”); provided, however, that Disclosable Interests shall
not include any such disclosures with respect to the ordinary course business activities of any broker, dealer, commercial bank, trust
company or other nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice
required by these By Laws on behalf of a beneficial owner;
(C) As
to each Proposing Person, (1) whether such Proposing Person intends or is part of a group which intends (x) to deliver a proxy statement
and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or
adopt the proposal(s) or (y) to otherwise solicit proxies in support of such proposal(s); (2) whether and the extent to which any agreement,
arrangement or understanding has been made, the effect or intent of which is to increase or decrease the voting power of such Proposing
Person with respect to any shares of the capital stock of the Corporation, without regard to whether such transaction is required to be
reported on a Schedule 13D in accordance with the Exchange Act; and (3) the investment strategy or objective, if any, of such Proposing
Person and a copy of the prospectus, offering memorandum or similar document, if any, provided to investors or potential investors in
such Proposing Person;
(D) A
complete and accurate description of all agreements, arrangements or understandings, written or oral, and formal or informal, (1) between
or among the stockholder giving notice and any other Proposing Person or (2) between or among the stockholder giving notice or any other
Proposing Person and any other person or entity (naming each such person or entity) in connection with or related to the proposed item
of business, including, without limitation, (x) any proxy, contract, arrangement, understanding or relationship pursuant to which such
stockholder or other Proposing Person has the right to vote any shares of any security of the Corporation, (y) any understanding, formal
or informal, written or oral, that such stockholder or any other Proposing Person may have reached with any stockholder of the Corporation
(including their names) with respect to how such stockholder will vote its shares in the Corporation at any meeting of the Corporation’s
stockholders or take other action in support of a proposed item of business, or other action to be taken, by such stockholder or any other
Proposing Person and (z) any other agreements that would be required to be disclosed by such stockholder, any other Proposing Person or
any other person or entity pursuant to Item 5 or Item 6 of a Schedule 13D that would be filed pursuant to the Exchange Act and the rules
and regulations promulgated thereunder (regardless of whether the requirement to file a Schedule 13D is applicable to the stockholder
giving notice, any other Proposing Person, any director nominee or other person or entity);
(E) As
to each item of business that a stockholder proposes to bring before the annual meeting, (1) a reasonably brief description of the business
desired to be brought before the annual meeting, the reasons for conducting such business at the annual meeting and any material interest
in such business of each Proposing Person, including any anticipated benefit therefrom, (2) the text of the proposal or business (including
the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the By Laws of
the Corporation, the language of the proposed amendment), (C) a reasonably detailed description of all agreements, arrangements and understandings
between or among any of the Proposing Persons or between or among any Proposing Person and any other person or entity (including their
names) in connection with the proposal of such business by such stockholder and (D) any other information related to such item of business
that would be required to be disclosed in a proxy statement or other filing required to be made by a Proposing Person in connection with
the solicitation of proxies or consents in support of such proposed business by such Proposing Person pursuant to Section 14(a) under
the Exchange Act; and
(F) A
representation from the stockholder giving notice that (1) such stockholder (x) is a holder of record of stock of the Corporation entitled
to vote at the meeting, (y) intends to vote such stock at the meeting and (z) intends to appear in person or by proxy at the annual meeting
to bring such business before the meeting; and (2) if such stockholder does not appear to present such business at the meeting, the Corporation
need not present such business for a vote at such meeting, notwithstanding that proxies in respect of such vote may have been received
by the Corporation.
(iii) For
purposes of this Section 2.7(a), the term “Proposing Person” shall mean (a) the stockholder providing
the notice of business proposed to be brought before an annual meeting, (b) the beneficial owner or beneficial owners, if different, on
whose behalf the notice of the business proposed to be brought before the annual meeting is made, (c) any affiliate or associate (as defined
below) of such stockholder or beneficial owner and (d) any other person with whom such stockholder or beneficial owner (or any of their
respective affiliates or associates) is a member of a “group” (as used in Rule 13d-5 of the Exchange Act).
(iv) A
stockholder providing notice of business proposed to be brought before an annual meeting shall further update and supplement such notice,
if necessary, so that the information provided or required to be provided in such notice pursuant to this Section 2.7(a) shall
be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to the meeting or any
adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary at
the principal executive offices of the Corporation not later than five (5) business days after the record date for the meeting (in the
case of the update and supplement required to be made as of the record date), and not later than eight (8) business days prior to the
date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date
prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made
as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).
(v) The
Corporation may require any Proposing Person to furnish such other information as the Corporation determines to be relevant to any item
of business that the Proposing Person proposes to bring before the annual meeting. Such Proposing Person shall deliver to the Corporation
such information no later than five (5) business days after the request by the Corporation for such information has been delivered to
such Proposing Person.
(vi) Notwithstanding
anything in these By Laws to the contrary, no business shall be conducted at an annual meeting except in accordance with this Section
2.7(a). The chairman of an annual meeting shall, if the facts warrant, determine that the business was not properly brought before
the meeting in accordance with this Section 2.7(a), and if he or she should so determine, he or she shall so declare to the meeting
and any such business not properly brought before the meeting shall not be transacted.
(vii) Notwithstanding
anything in the By Laws to the contrary, if the stockholder (or a qualified representative of the stockholder) proposing business to be
conducted at a meeting of stockholders does not appear at the meeting to present such business, such proposed business shall not be transacted,
notwithstanding that proxies in respect of such vote may have been received by the Corporation.
(viii) This
Section 2.7(a) is expressly intended to apply to any business proposed to be brought before an annual meeting of stockholders,
regardless of whether or not such proposal made pursuant to Rule 14a-8 under the Exchange Act. In addition to the requirements of this
Section 2.7(a) with respect to any business proposed to be brought before an annual meeting, each Proposing Person shall comply
with all applicable requirements of the Exchange Act and state law with respect to any such business; provided, however, that any references
in these By Laws to the Exchange Act are not intended to and shall limit the disclosure requirements under this Section 2.7(a) or
Section 3.2 of these By Laws. Nothing in this Section 2.7(a) shall be deemed to affect the rights of stockholders to request inclusion
of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(ix) If
any information submitted pursuant to this Section 2.7(a) or Section 3.2 of these By Laws by any stockholder proposing business
for consideration or individuals to nominate for election or reelection as a director at a meeting of stockholders shall be inaccurate
in any respect, such information may be deemed not to have been provided in accordance with these By Laws. Any such stockholder shall
notify the Corporation of any inaccuracy or change in any such information within two (2) business days of becoming aware of such inaccuracy
or change. Upon written request by the Secretary of the Corporation, the Board or any committee thereof, any such stockholder shall provide,
within seven (7) business days of delivery of such request (or such other period as may be specified in such request), (a) written verification,
reasonably satisfactory to the Board, any committee thereof or any authorized officer of the Corporation, to demonstrate the accuracy
of any information submitted by the stockholder pursuant to this Section 2.7(a), and (b) a written update of any information (including
written confirmation by such stockholder that it continues to intend to bring such nomination or other business proposal before the meeting)
submitted by the stockholder pursuant to this Section 2.7(a) as of an earlier date. If a stockholder fails to provide such written
verification within such period, the information as to which written verification was requested may be deemed not to have been provided
in accordance with this Section 2.7(a).
(x) For
purposes of these By Laws, an “affiliate” and “associate” each have the respective meanings set forth in Rule
12b-2 under the Exchange Act and (ii) “public announcement” shall mean disclosure in a press release reported by a national
news service, in a document publicly filed by the Corporation with the Securities and Exchange Commission (the “Commission”)
pursuant to Sections 13, 14 or 15(d) of the Exchange Act or in a notice pursuant to the applicable rules of an exchange on which the securities
of the Corporation are listed.
(b) Special Meetings of Stockholders.
Stockholders shall not be permitted to propose business to be brought before a special meeting of the stockholders, and the only matters
that may be brought before a special meeting are the matters specified in the notice of meeting given by or at the direction of the person
calling the meeting pursuant to Section 2.2 of these By Laws. Nominations of persons for election to the Board may be made at a
special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only pursuant
to Section 3.2.
Section 2.8. Conduct of
Meetings. The chairman of each annual and special meeting of stockholders shall be the Chairman of the Board or, in the absence (or
inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence
(or inability or refusal to act of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if
he or she shall be a director) or, in the absence (or inability or refusal to act) of the President or if the President is not a director,
such other person as shall be appointed by the Board. The date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be announced at the meeting by the chairman of the meeting. The Board may adopt such
rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with
these By Laws or such rules and regulations as adopted by the Board, the chairman of any meeting of stockholders shall have the right
and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment of an
agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present;
(c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and
constituted proxies or such other persons as the chairman of the meeting shall determine; (d) restrictions on entry to the meeting after
the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants. Unless
and to the extent determined by the Board or the chairman of the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure. The secretary of each annual and special meeting of stockholders shall be the Secretary
or, in the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary so appointed to act by the chairman of the
meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.9. Consents in
Lieu of Meeting. Stockholders may take action by written consent only to the extent permitted by and in the manner described in the
Certificate of Incorporation.
ARTICLE III
DIRECTORS
Section 3.1. Powers; Number.
The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By
Laws required to be exercised or done by the stockholders. Directors need not be stockholders or residents of the State of Delaware. Subject
to the Certificate of Incorporation, the number of directors shall be fixed exclusively by resolution of the Board.
Section 3.2. Advance Notice
Procedures for Nomination of Directors.
(a) Nominations of any person
for election to the Board at an annual meeting or at a special meeting (but only if the election of directors is a matter specified in
the notice of meeting given by or at the direction of the person calling such special meeting) may be made at such meeting only (i) by
or at the direction of the Board, or (ii) by a stockholder who (A) was a stockholder of record entitled to vote in the election of directors
of the Corporation both at the time of giving the notice provided for in this Section 3.2 and at the time of the meeting, (B) is
entitled to vote at the meeting and (C) has complied with this Section 3.2 as to such nomination. The foregoing clause (ii) shall
be the exclusive means for a stockholder to make any nomination of a person or persons for election to the Board to be considered by the
stockholders at an annual meeting or special meeting.
(b) Without
qualification, for a stockholder to make any nomination of a person or persons for election to the Board at an annual meeting, the stockholder
must (i) provide Timely Notice (as defined in Section 2.7(a) of these By Laws) thereof in writing and in proper form to the Secretary
of the Corporation and (ii) provide any updates or supplements to such notice at the times and in the forms required by this Section
3.2. Without qualification, if the election of directors is a matter specified in the notice of meeting given by or at the direction
of the person calling such special meeting, then for a stockholder to make any nomination of a person or persons for election to the Board
at a special meeting, the stockholder must (A) provide timely notice thereof in writing and in proper form to the Secretary of the Corporation
at the principal executive offices of the Corporation and (B) provide any updates or supplements to such notice at the times and in the
forms required by this Section 3.2. To be timely, a stockholder’s notice for nominations to be made at a special meeting
must be delivered to, or mailed and received at, the principal executive offices of the Corporation not earlier than the one hundred twentieth
(120th) day prior to such special meeting and not later than the ninetieth (90th) day prior to such special meeting or, if later, the
tenth (10th) day following the day on which public announcement of the date of such special meeting was first made. The number of individuals
a stockholder may nominate for election at a meeting of the stockholders (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 on behalf of such beneficial owner) shall not exceed
the number of directors to be elected at such meeting. In no event shall any adjournment or postponement of an annual meeting or special
meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above.
(c) To
be in proper form for purposes of this Section 3.2, a stockholder’s notice to the Secretary shall set forth:
(i) As
to each Nominating Person (as defined below), the Stockholder Information (as defined in Section 2.7(a) of these By Laws) except
that for purposes of this Section 3.2, the term “Nominating Person” shall be substituted for the term “Proposing
Person” in all places it appears in Section 3.2(c);
(ii) As
to each Nominating Person, any Disclosable Interests (as defined in Section 2.7(a) of these By Laws), except that for purposes of this
Section 3.2 the term “Nominating Person” shall be substituted for the term “Proposing Person” in all places
it appears in Section 2.7(a) and the disclosures in clauses (7), (12) and (13) of Section 2.7(a)(ii)(B) shall be made with respect
to the nomination of directors for election at the meeting;
(iii) As
to each Nominating Person, the disclosures required by Sections 2.7(a)(ii)(C) and 2.7(a)(ii)(D) of these By Laws, except that, for the
purposes of this Section 3.2, the term “Nominating Person” shall be substituted for the term “Proposing Person”
in all places it appears in Section 2.7(a) and the disclosures in Sections 2.7(a)(ii)(C) and 2.7(a)(ii)(D) shall be made with respect
to the nomination of directors for election at the meeting;
(iv) As
to each Nominating Person, a reasonably detailed description of all agreements, arrangements and understandings between or among any of
the Nominating Persons or between or among any Nominating Person and any other person or entity (including their names) in connection
with the nomination of directors for election at the meeting;
(v) A
representation from the stockholder giving notice that (A) such stockholder (x) is a holder of record of stock of the Corporation entitled
to vote at the meeting, (y) intends to vote such stock at the meeting and (z) intends to appear in person or by proxy at the meeting to
bring such nomination before the meeting; and (B) if such stockholder does not appear to present such nomination at the meeting, the Corporation
need not present such nomination for a vote at such meeting, notwithstanding that proxies in respect of such vote may have been received
by the Corporation;
(vi) As
to each person whom a Nominating Person proposes to nominate for election as a director, (A) all information with respect to such proposed
nominee that would be required to be set forth in a stockholder’s notice pursuant to Sections 2.7(a)(ii)(A), 2.7(a)(ii)(B)(1)-(6)
and 2.7(a)(ii) (B)(8)-(12), except that references to “Proposing Person” shall refer to the proposed nominee, (B) the age,
principal occupation and employment of such proposed nominee; (C) all information relating to such proposed nominee that is required to
be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors
in a contested election pursuant to Section 14(a) under the Exchange Act (including such proposed nominee’s written consent to being
named in the proxy statement as a nominee and to serving as a director if elected), (D) a description of all direct and indirect compensation
and other material monetary agreements, arrangements and understandings during the past three (3) years, and any other material relationships,
between or among any Nominating Person, on the one hand, and each proposed nominee, his or her respective affiliates and associates, on
the other hand, including, without limitation, all information that would be required to be disclosed pursuant to Item 404 under Regulation
S-K if such Nominating Person were the “registrant” for purposes of such rule and the proposed nominee were a director or
executive officer of such registrant, and (E) a completed and signed questionnaire, representation and agreement as provided in Section
3.2(g) of these By Laws; and
(vii) The
Corporation may require any proposed nominee to furnish such other information (A) as may reasonably be required by the Corporation to
determine the eligibility of such proposed nominee to serve as an independent director of the Corporation in accordance with the Corporation’s
Corporate Governance Guidelines or (B) that could be material to a reasonable stockholder’s understanding of the independence or
lack of independence of such proposed nominee, in each case under the listing standards of each principal securities exchange upon which
the shares of the Corporation are listed, any applicable rules of the Commission and any publicly disclosed standards used by the Board
of Directors (including the Corporation’s Corporate Governance Guidelines) in determining and disclosing the independence of the
Corporation’s directors, including those applicable to a director’s service on any of the committees of the Board of Directors.
(d) For
purposes of this Section 3.2, the term “Nominating Person” shall mean (i) the stockholder providing the
notice of the nomination proposed to be made at the meeting, (ii) the beneficial owner or beneficial owners, if different, on whose behalf
the notice of the nomination proposed to be made at the meeting is made, (iii) any affiliate or associate of such stockholder or beneficial
owner and (iv) any other person with whom such stockholder or such beneficial owner (or any of their respective affiliates or associates)
is a member of a “group” (as used in Rule 13d-5 of the Exchange Act).
(e) A
stockholder providing notice of any nomination proposed to be made at a meeting pursuant to this Section 3.2 shall further update
and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this
Section 3.2 shall be true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior
to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received
by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for
the meeting (in the case of the update and supplement required to be made as of the record date), and not later than eight (8) business
days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first
practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required
to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).
(f) The
chairman of the meeting shall, if the facts warrant, determine that a nomination was not properly made in accordance with this Section
3.2, and if he or she should so determine, he or she shall so declare such determination to the meeting and the defective nomination
shall be disregarded.
(g) To
be eligible to be a nominee for election as a director of the Corporation pursuant to this Section 3.2, the proposed nominee must
deliver (in accordance with the time periods prescribed for delivery of notice under this Section 3.2) to the Secretary at the
principal executive offices of the Corporation a written questionnaire with respect to the background and qualification of such proposed
nominee (which questionnaire shall be provided by the Secretary within ten (10) days of receipt of a request) and a written representation
and agreement (in form provided by the Secretary within ten (10) days of receipt of a request) that such proposed nominee (i) is not and
will not become a party to (A) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any
person or entity as to how such proposed nominee, if elected as a director of the Corporation, will act or vote on any issue or question
(a “Voting Commitment”) that has not been disclosed to the Corporation or (B) any Voting Commitment that could
limit or interfere with such proposed nominee’s ability to comply, if elected as a director of the Corporation, with such proposed
nominee’s fiduciary duties under applicable law, (ii) 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
in connection with service or action as a director that has not been disclosed to the Corporation, (iii) in such proposed nominee’s
individual capacity and on behalf of the stockholder (or the beneficial owner, if different) on whose behalf the nomination is made, would
be in compliance, if elected as a director of the Corporation, and will comply with applicable publicly disclosed corporate governance,
ethics, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation, (iv) intends
to serve a full term if elected as a director of the Corporation and (v) will provide facts, statements and other information in all communications
with the Corporation and its stockholders that are or will be true and correct in all material respects, and that do not and will not
omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made,
not misleading.
(h) No
person may be elected or appointed as a director if such person has ever pleaded guilty or no contest or been convicted of any state or
federal crime involving insider trading in securities or of any felony involving a financial crime.
(i) The
Corporation may require any proposed nominee and any Nominating Person to furnish such other information as the Corporation determines
to be necessary or advisable to determine the eligibility, suitability or qualifications of such proposed nominee to serve as a director
of the Corporation. Such proposed nominee or any Nominating Person shall deliver to the Corporation such information no later than five
(5) business days after the request by the Corporation for such information has been delivered to such proposed nominee or Nominating
Person, as applicable.
(j) No
person shall be eligible for election as a director of the Corporation unless nominated in accordance with the procedures set forth in
this Section 3.2. In addition to the requirements of this Section 3.2 with respect to any nomination proposed to be made
at a meeting, each Nominating Person shall comply with all applicable requirements of the Exchange Act with respect to any such nominations.
(k) Notwithstanding
anything in the By Laws to the contrary, if the stockholder (or a qualified representative of the stockholder) making the nomination does
not appear at the meeting to present such nomination, such nomination shall not be transacted, notwithstanding that proxies in respect
of such vote may have been received by the Corporation.
Section 3.3. Compensation.
Unless otherwise restricted by the Certificate of Incorporation or these By Laws, the Board shall have the authority to fix the compensation
of directors, including for service on a committee of the Board, and may be paid either a fixed sum for attendance at each meeting of
the Board or other compensation as director. The directors may be reimbursed their expenses, if any, of attendance at each meeting of
the Board. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Members of committees of the Board may be allowed like compensation and reimbursement of expenses for service on the committee.
ARTICLE IV
BOARD MEETINGS
Section 4.1. Annual Meetings.
The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place of the annual stockholders
meeting unless the Board shall fix another time and place and give notice thereof in the manner required herein for special meetings of
the Board. No notice to the directors shall be necessary to legally convene this meeting, except as provided in this Section 4.1.
Section 4.2. Regular Meetings.
Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places (within or without the
State of Delaware) as shall from time to time be determined by the Board.
Section 4.3. Special Meetings.
Special meetings of the Board (a) may be called by the Chairman of the Board or President and (b) shall be called by the Chairman of the
Board, President or Secretary on the written request of at least a majority of directors then in office, or the sole director, as the
case may be, and shall be held at such time, date and place (within or without the State of Delaware) as may be determined by the person
calling the meeting or, if called upon the request of directors or the sole director, as specified in such written request. Notice of
each special meeting of the Board shall be given, as provided in Section 10.3, to each director (i) at least 24 hours before the
meeting if such notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of a form
of electronic transmission and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally recognized overnight
delivery service; and (iii) at least five days before the meeting if such notice is sent through the United States mail. If the Secretary
shall fail or refuse to give such notice, then the notice may be given by the officer who called the meeting or the directors who requested
the meeting. Any and all business that may be transacted at a regular meeting of the Board may be transacted at a special meeting. Except
as may be otherwise expressly provided by applicable law, the Certificate of Incorporation, or these By Laws, neither the business to
be transacted at, nor the purpose of, any special meeting need be specified in the notice or waiver of notice of such meeting. A special
meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in
accordance with Section 10.4.
Section 4.4. Quorum; Required
Vote. A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board, 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, except as may be otherwise
specifically provided by applicable law, the Certificate of Incorporation or these By Laws. If a quorum shall not be present at any meeting,
a majority of the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting,
until a quorum is present.
Section 4.5. Consent In
Lieu of Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By Laws, any action required or permitted
to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all members of the Board or committee,
as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or
transmissions (or paper reproductions thereof) are filed with the minutes of proceedings of the Board or committee. Such filing shall
be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic
form.
Section 4.6. Organization.
The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the
Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to act)
of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director) or
in the absence (or inability or refusal to act) of the President or if the President is not a director, a chairman elected from the directors
present. The Secretary shall act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of the Secretary,
an Assistant Secretary shall perform the duties of the Secretary at such meeting. In the absence (or inability or refusal to act) of the
Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
Section 5.1. Establishment.
The Board may by resolution of the Board designate one or more committees, each committee to consist of one or more of the directors of
the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when required by the resolution
designating such committee. The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve
any such committee.
Section 5.2. Available
Powers. Any committee established pursuant to Section 5.1 hereof, to the extent permitted by applicable law and by resolution
of the Board, shall have and may exercise all of the powers and authority of the Board 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 that may require it.
Section 5.3. Alternate
Members. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified
member at any meeting of such committee. In the absence or disqualification of a member of the committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another
member of the Board to act at the meeting in place of any such absent or disqualified member.
Section 5.4. Procedures.
Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by such
committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate member, unless
such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such meeting) shall constitute
a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall
be the act of the committee, except as otherwise specifically provided by applicable law, the Certificate of Incorporation, these By Laws
or the Board. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without
notice other than an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and except as provided
in these By Laws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of its business. In the
absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to conduct its business
pursuant to Article III and Article IV of these By Laws.
ARTICLE VI
OFFICERS
Section 6.1. Officers.
The officers of the Corporation elected by the Board shall be a Chief Executive Officer, a Chief Financial Officer, a Secretary and such
other officers (including without limitation, a Chairman of the Board, Presidents, Vice Presidents, Assistant Secretaries and a Treasurer)
as the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties as generally pertain
to their respective offices, subject to the specific provisions of this Article VI. Such officers shall also have such powers and duties
as from time to time may be conferred by the Board. The Chief Executive Officer or President may also appoint such other officers (including
without limitation one or more Vice Presidents and Controllers) as may be necessary or desirable for the conduct of the business of the
Corporation. Such other officers shall have such powers and duties and shall hold their offices for such terms as may be provided in these
By Laws or as may be prescribed by the Board or, if such officer has been appointed by the Chief Executive Officer or President, as may
be prescribed by the appointing officer.
(a) Chairman of the Board.
The Chairman of the Board shall preside when present at all meetings of the stockholders and the Board. The Chairman of the Board shall
have general supervision and control of the acquisition activities of the Corporation subject to the ultimate authority of the Board,
and shall be responsible for the execution of the policies of the Board with respect to such matters. In the absence (or inability or
refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present
at all meetings of the stockholders and the Board. The powers and duties of the Chairman of the Board shall not include supervision or
control of the preparation of the financial statements of the Corporation (other than through participation as a member of the Board).
The position of Chairman of the Board and Chief Executive Officer may be held by the same person.
(b) Chief Executive Officer.
The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision of the affairs of
the Corporation and general control of all of its business subject to the ultimate authority of the Board, and shall be responsible for
the execution of the policies of the Board with respect to such matters, except to the extent any such powers and duties have been prescribed
to the Chairman of the Board pursuant to Section 6.1 (a) above. In the absence (or inability or refusal to act) of the Chairman
of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders
and the Board. The position of Chief Executive Officer and President may be held by the same person.
(c) President. The President
shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved for the final executive
responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairman of the Board and Chief
Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings of the stockholders and
the Board. The President shall also perform such duties and have such powers as shall be designated by the Board. The position of President
and Chief Executive Officer may be held by the same person.
(d) Vice Presidents.
In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there be more than one Vice President,
the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President. Any one or more
of the Vice Presidents may be given an additional designation of rank or function.
(e) Secretary.
(i) The Secretary shall attend
all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings of such meetings
in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special
meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chairman of the Board, Chief Executive
Officer or President. The Secretary shall have custody of the corporate seal of the Corporation and the Secretary, or any Assistant Secretary,
shall have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested by his or her signature
or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing thereof by his or her signature.
(ii) The Secretary shall keep,
or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s transfer agent or
registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders and their addresses,
the number and classes of shares held by each and, with respect to certificated shares, the number and date of certificates issued for
the same and the number and date of certificates cancelled.
(f) Assistant Secretaries.
The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the Board shall, in the absence
(or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g) Chief Financial Officer.
The Chief Financial Officer shall perform all duties commonly incident to that office (including, without limitation, the care and custody
of the funds and securities of the Corporation, which from time to time may come into the Chief Financial Officer’s hands and the
deposit of the funds of the Corporation in such banks or trust companies as the Board, the Chief Executive Officer or the President may
authorize).
(h) Treasurer. The Treasurer
shall, in the absence (or inability or refusal to act) of the Chief Financial Officer, perform the duties and exercise the powers of the
Chief Financial Officer.
Section 6.2. Term of Office;
Removal; Vacancies. The elected officers of the Corporation shall be appointed by the Board and shall hold office until their successors
are duly elected and qualified by the Board or until their earlier death, resignation, retirement, disqualification, or removal from office.
Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by the Chief Executive Officer or President
may also be removed, with or without cause, by the Chief Executive Officer or President, as the case may be, unless the Board otherwise
provides. Any vacancy occurring in any elected office of the Corporation may be filled by the Board. Any vacancy occurring in any office
appointed by the Chief Executive Officer or President may be filled by the Chief Executive Officer, or President, as the case may be,
unless the Board then determines that such office shall thereupon be elected by the Board, in which case the Board shall elect such officer.
Section 6.3. Other Officers.
The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and agents or delegate the
power to remove same, as it shall from time to time deem necessary or desirable.
Section 6.4. Multiple Officeholders;
Stockholder and Director Officers. Any number of offices may be held by the same person unless the Certificate of Incorporation or
these By Laws otherwise provide. Officers need not be stockholders or residents of the State of Delaware.
ARTICLE VII
SHARES
Section 7.1. Certificated
and Uncertificated Shares. The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion of
the Board and the requirements of the DGCL.
Section 7.2. Multiple Classes
of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the Corporation
shall (a) cause 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 and/or rights to be set forth in full or summarized
on the face or back of any certificate that the Corporation issues to represent shares of such class or series of stock or (b) in the
case of uncertificated shares, within a reasonable time after the issuance or transfer of such shares, send to the registered owner thereof
a written notice containing the information required to be set forth on certificates as specified in clause (a) above; provided, however,
that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there may be set forth on the face or back
of such certificate or, in the case of uncertificated shares, on such written notice 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.
Section 7.3. Signatures.
Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by (a) the Chairman
of the Board, Chief Executive Officer, the President or a Vice President and (b) the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Corporation. Any or all the signatures on the certificate may be a facsimile. In case any 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, such certificate may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar on the date of issue.
Section 7.4. Consideration
and Payment for Shares.
(a) Subject to applicable law
and the Certificate of Incorporation, shares of stock may be issued for such consideration, having in the case of shares with par value
a value not less than the par value thereof, and to such persons, as determined from time to time by the Board. The consideration may
consist of any tangible or intangible property or any benefit to the Corporation including cash, promissory notes, services performed,
contracts for services to be performed or other securities, or any combination thereof.
(b) Subject to applicable law
and the Certificate of Incorporation, shares may not be issued until the full amount of the consideration has been paid, unless upon the
face or back of each certificate issued to represent any partly paid shares of capital stock or upon the books and records of the Corporation
in the case of partly paid uncertificated shares, there shall have been set forth the total amount of the consideration to be paid therefor
and the amount paid thereon up to and including the time said certificate representing certificated shares or said uncertificated shares
are issued.
Section 7.5. Lost, Destroyed
or Wrongfully Taken Certificates.
(a) If an owner of a certificate
representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation shall issue a new certificate
representing such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate before the Corporation
has notice that the certificate representing such shares has been acquired by a protected purchaser; (ii) if requested by the Corporation,
delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation
on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance of such new certificate or uncertificated
shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.
(b) If a certificate representing
shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation of that fact within a reasonable
time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation registers a transfer of such
shares before receiving notification, the owner shall be precluded from asserting against the Corporation any claim for registering such
transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.
Section 7.6. Transfer of Stock.
(a) If a certificate representing
shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of transfer of such shares or
an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares, the Corporation shall
register the transfer as requested if:
(i) in the case of certificated
shares, the certificate representing such shares has been surrendered;
(ii) (A) with respect to certificated
shares, the endorsement is made by the person specified by the certificate as entitled to such shares; (B) with respect to uncertificated
shares, an instruction is made by the registered owner of such uncertificated shares; or (C) with respect to certificated shares or uncertificated
shares, the endorsement or instruction is made by any other appropriate person or by an agent who has actual authority to act on behalf
of the appropriate person;
(iii) the Corporation has
received a guarantee of signature of the person signing such endorsement or instruction or such other reasonable assurance that the endorsement
or instruction is genuine and authorized as the Corporation may request;
(iv) the transfer does not
violate any restriction on transfer imposed by the Corporation that is enforceable in accordance with Section 7.8(a); and
(v) such other conditions
for such transfer as shall be provided for under applicable law have been satisfied.
(b) Whenever any transfer of
shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry of transfer if,
when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated, when the instruction
for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request the Corporation to do
so.
Section 7.7. Registered
Stockholders. Before due presentment for registration of transfer of a certificate representing shares of the Corporation or of an
instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner as the person
exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation, vote such
shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers of the owner of
such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee on behalf of such
person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying such other conditions as are provided
under applicable law, may also so inspect the books and records of the Corporation.
Section 7.8. Effect of
the Corporation’s Restriction on Transfer.
(a) A written restriction on
the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the Corporation that may be owned
by any person or group of persons, if permitted by the DGCL and noted conspicuously on the certificate representing such shares or, in
the case of uncertificated shares, contained in a notice, offering circular or prospectus sent by the Corporation to the registered owner
of such shares within a reasonable time prior to or after the issuance or transfer of such shares, may be enforced against the holder
of such shares or any successor or transferee of the holder including an executor, administrator, trustee, guardian or other fiduciary
entrusted with like responsibility for the person or estate of the holder.
(b) A restriction imposed by
the Corporation on the transfer or the registration of shares of the Corporation or on the amount of shares of the Corporation that may
be owned by any person or group of persons, even if otherwise lawful, is ineffective against a person without actual knowledge of such
restriction unless: (i) the shares are certificated and such restriction is noted conspicuously on the certificate; or (ii) the shares
are uncertificated and such restriction was contained in a notice, offering circular or prospectus sent by the Corporation to the registered
owner of such shares within a reasonable time prior to or after the issuance or transfer of such shares.
Section 7.9. Regulations.
The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of law,
as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares of stock or
certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for the validity thereof
that certificates representing shares bear the signature of any transfer agent or registrar so appointed.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Right to Indemnification.
To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and
hold harmless each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”),
by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation,
is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (hereinafter an
“Indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee
or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and
expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in
settlement) reasonably incurred by such Indemnitee in connection with such proceeding; provided, however, that, except as provided in
Section 8.3 with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify an Indemnitee in
connection with a proceeding (or part thereof) initiated by such Indemnitee only if such proceeding (or part thereof) was authorized by
the Board.
Section 8.2. Right to Advancement
of Expenses. In addition to the right to indemnification conferred in Section 8.1, an Indemnitee shall also have the right
to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including, without limitation, attorneys’
fees) incurred in defending or otherwise participating in any such proceeding in advance of its final disposition (hereinafter an ‘
advancement of expenses”), provided, however, that, if the DGCL requires, an advancement of expenses incurred by an Indemnitee in
his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by
such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon the Corporation’s receipt
of an undertaking (hereinafter an ‘“undertaking”), by or on behalf of such Indemnitee, to repay all amounts so advanced
if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this Article VIII or otherwise.
Section 8.3. Right of Indemnitee
to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not paid in full by the Corporation within 60 days after
a written claim therefor has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which
case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall also be entitled to be paid the expense of prosecuting
or defending such suit. In (a) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought
by an Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (b) in any suit brought by the Corporation
to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses
upon a final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that, the
Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including
its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because
the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including
a determination by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its
stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has
not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, shall be a defense to such suit.
In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation
to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled
to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation.
Section 8.4. Non-Exclusivity
of Rights. The rights provided to any Indemnitee pursuant to this Article VIII shall not be exclusive of any other right, which such
Indemnitee may have or hereafter acquire under applicable law, the Certificate of Incorporation, these By Laws, an agreement, a vote of
stockholders or disinterested directors, or otherwise.
Section 8.5. Insurance.
The Corporation may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Section 8.6. Indemnification
of Other Persons. This Article VIII shall not limit the right of the Corporation to the extent and in the manner authorized or permitted
by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting the foregoing, the Corporation may, to
the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any employee
or agent of the Corporation and to any other person who is or was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee
benefit plan, to the fullest extent of the provisions of this Article VIII with respect to the indemnification and advancement of expenses
of Indemnitees under this Article VIII.
Section 8.7. Amendments.
Any repeal or amendment of this Article VIII by the Board or the stockholders of the Corporation or by changes in applicable law, or the
adoption of any other provision of these By Laws inconsistent with this Article VIII. will, to the extent permitted by applicable law,
be prospective only (except to the extent such amendment or change in applicable law permits the Corporation to provide broader indemnification
rights to Indemnitees on a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely affect any right
or protection existing hereunder in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent
provision; provided however, that amendments or repeals of this Article VIII shall require the affirmative vote of the stockholders holding
at least 66.7% of the voting power of all outstanding shares of capital stock of the Corporation.
Section 8.8. Certain Definitions.
For purposes of this Article VIII (a) references to “other enterprise” shall include any employee benefit plan; (b) references
to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; (c) references to
“serving at the request of the Corporation” shall include any service that imposes duties on, or involves services by, a person
with respect to any employee benefit plan, its participants, or beneficiaries; and (d) a person who acted in good faith and in a manner
such person 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 interest of the Corporation” for purposes of Section 145 of the DGCL.
Section 8.9. Contract Rights.
The rights provided to Indemnitees pursuant to this Article VIII shall be contract rights and such rights shall continue as to an Indemnitee
who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the Indemnitee’s heirs, executors
and administrators.
Section 8.10. Severability.
If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining provisions of this Article VIII shall not in any way be affected or impaired
thereby; and (b) to the fullest extent possible, the provisions of this Article VIII (including, without limitation, each such portion
of this Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect
to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE IX
EMErGEncy by laws
Section 9.1. Emergency
bylaws. Notwithstanding anything to the contrary in the Certificate of Incorporation or these By Laws, in the event there is any emergency,
disaster or catastrophe, as referred to in Section 110 of the DGCL, or other similar emergency condition (each, an “emergency”)
and irrespective of whether a quorum of the Board or a standing committee thereof can readily be convened for action, this Section 9.1
shall apply.
(a) Any
director or senior executive officer of the Corporation may call a meeting of the Board or any committee thereof by any feasible means
and with such advance notice as circumstances permit in the judgment of the person calling the meeting. Neither the business to be transacted
nor the purpose of any such meeting need be specified in the notice thereof.
(b) At
any meeting called in accordance with Section 9.1(a) of these By Laws, the director or directors in attendance shall constitute a quorum.
In the event that no directors are able to attend the meeting, the Designated Officers in attendance shall be deemed directors for such
meeting. For purposes of this Section 9.1(b), a “Designated Officer” means an officer who is included on a list of officers
of the Corporation who shall be deemed to be directors of the Corporation for purposes of obtaining a quorum during an emergency if a
quorum of directors cannot otherwise be obtained, which officers have been designated by the Board prior to such time as an emergency
may have occurred.
(c) Directors
may take action to appoint one or more of the directors to membership on any standing or temporary committees of the Board as they deem
advisable. Directors may also take action to designate one or more of the officers of the Corporation to serve as directors of the Corporation
while this Section 9.1 applies.
(d) To
the extent that it considers it practical to do so, the Board shall manage the business of the Corporation during an emergency in a manner
that is consistent with the Certificate of Incorporation and these By Laws. It is recognized, however, that in an emergency, it may not
always be practical to act in this manner and this Section 9.1 is intended to, and does hereby, empower the Board with the maximum authority
possible under the DGCL and all other applicable law to conduct the interim management of the affairs of the Corporation in an emergency
in what it considers to be in the best interests of the Corporation, including, without limitation, taking any action that it determines
to be practical and necessary to address the circumstances of the emergency.
(e) No
director, officer or employee acting in accordance with this Section 9.1 or otherwise pursuant to Section 110 of the DGCL (or any successor
section) shall be liable except for willful misconduct.
(f) This
Section 9.1 shall continue to apply until such time following the emergency when it is feasible for at least a majority of the Board immediately
prior to the emergency to resume management of the business of the Corporation.
(g) At
any meeting called in accordance with Section 9.1(a), the Board may modify, amend or add to the provisions of this Section 9.1 in order
to make any provision that may be practical or necessary given the circumstances of the emergency.
(h) The
provisions of this Section 9.1 shall be subject to repeal or change by further action of the Board or by action of the stockholders, but
no such repeal or change shall modify the provisions of Section 9.1(e) of these By Laws with regard to action taken prior to the time
of such repeal or change.
(i) Nothing
contained in this Section 9.1 shall be deemed exclusive of any other provisions for emergency powers consistent with other sections of
the DGCL that have been or may be adopted by corporations created under the DGCL.
ARTICLE X
MISCELLANEOUS
Section 10.1. Place of
Meetings. If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required under these
By Laws is not designated in the notice of such meeting, such meeting shall be held at the principal business office of the Corporation;
provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at any place, but instead shall
be held by means of remote communication pursuant to Section 10.5 hereof, then such meeting shall not be held at any place.
Section 10.2. Fixing Record
Dates.
(a) In order that the Corporation
may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record
date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date
shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board so fixes a date, such date shall also be
the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such
record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date
is fixed by the Board, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall
be at the close of business on the business day next preceding the day on which notice is given, or, if notice is waived, at the close
of business on the business day next preceding the day on which the meeting is held. 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
may fix a new record date for the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice
of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with
the foregoing provisions of this Section 10.2(a) at the adjourned meeting.
(b) In order that the Corporation
may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders
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 may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
Section 10.3. Means of
Giving Notice.
(a) Notice to Directors.
Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be given to any director, such
notice shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery service, (ii) by means of facsimile
telecommunication or other form of electronic transmission, or (iii) by oral notice given personally or by telephone. A notice to a director
will be deemed given as follows: (i) if given by hand delivery, orally, or by telephone, when actually received by the director, (ii)
if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to
the director at the director’s address appearing on the records of the Corporation, (iii) if sent for next day delivery by a nationally
recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the director at the director’s
address appearing on the records of the Corporation, (iv) if sent by facsimile telecommunication, when sent to the facsimile transmission
number for such director appearing on the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic mail
address for such director appearing on the records of the Corporation, or (vi) if sent by any other form of electronic transmission, when
sent to the address, location or number (as applicable) for such director appearing on the records of the Corporation.
(b) Notice to Stockholders.
Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be given to any stockholder, such
notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by a nationally recognized overnight
delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented to by the stockholder, to the
extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL. A notice to a stockholder shall be deemed given
as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if sent through the United States mail, when
deposited in the United States mail, with postage and fees thereon prepaid, addressed to the stockholder at the stockholder’s address
appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service,
when deposited with such service, with fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing
on the stock ledger of the Corporation, and (iv) if given by a form of electronic transmission consented to by the stockholder to whom
the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile transmission, when directed to a number
at which the stockholder has consented to receive notice, (B) if by electronic mail, when directed to an electronic mail address at which
the stockholder has consented to receive notice, (C) if by a posting on an electronic network together with separate notice to the stockholder
of such specified posting, upon the later of (1) such posting and (2) the giving of such separate notice, and (D) if by any other form
of electronic transmission, when directed to the stockholder. A stockholder may revoke such stockholder’s consent to receiving notice
by means of electronic communication by giving written notice of such revocation to the Corporation. Any such consent shall be deemed
revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance
with such consent and (2) such inability becomes known to the Secretary or an Assistant Secretary or to the Corporation’s transfer
agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation
shall not invalidate any meeting or other action.
(c) Electronic Transmission.
“Electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form
by such a recipient through an automated process, including but not limited to transmission by telex, facsimile telecommunication, electronic
mail, telegram and cablegram.
(d) Notice to Stockholders
Sharing Same Address. Without limiting the manner by which notice otherwise may be given effectively by the Corporation to stockholders,
any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation or these By Laws
shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that
address to whom such notice is given. A stockholder may revoke such stockholder’s consent by delivering written notice of such revocation
to the Corporation. Any stockholder who fails to object in writing to the Corporation within 60 days of having been given written notice
by the Corporation of its intention to send such a single written notice shall be deemed to have consented to receiving such single written
notice.
(e) Exceptions to Notice
Requirements. Whenever notice is required to be given, under the DGCL, the Certificate of Incorporation or these By Laws, to any person
with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply
to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting that shall be
taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice
had been duly given.
In the event that the action
taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate shall
state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
Whenever notice is required
to be given by the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these By Laws, to any stockholder
to whom (1) notice of two consecutive annual meetings of stockholders and all notices of stockholder meetings or of the taking of action
by written consent of stockholders without a meeting to such stockholder during the period between such two consecutive annual meetings,
or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on securities during a 12-month period, have
been mailed addressed to such stockholder at such stockholder’s address as shown on the records of the Corporation and have been
returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting that shall be taken
or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given. If any such stockholder
shall deliver to the Corporation a written notice setting forth such stockholder’s then current address, the requirement that notice
be given to such stockholder shall be reinstated. In the event that the action taken by the Corporation is such as to require the filing
of a certificate with the Secretary of State of Delaware, the certificate need not state that notice was not given to persons to whom
notice was not required to be given pursuant to Section 230(b) of the DGCL. The exception in subsection (1) of the first sentence of this
paragraph to the requirement that notice be given shall not be applicable to any notice returned as undeliverable if the notice was given
by electronic transmission.
Section 10.4. Waiver of
Notice. Whenever any notice is required to be given under applicable law, the Certificate of Incorporation, or these By Laws, a written
waiver of such notice, signed by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled
to said notice, whether before or after the time stated therein, shall be deemed equivalent to such required notice. All such waivers
shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such meeting, except where
a person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully
called or convened.
Section 10.5. Meeting Attendance
via Remote Communication Equipment.
(a) Stockholder Meetings.
If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders
entitled to vote at such meeting and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:
(i) participate in a meeting
of stockholders; and
(ii) be deemed present in
person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication,
provided that (A) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote
at the meeting by means of remote communication is a stockholder or proxy holder, (B) the Corporation shall implement reasonable measures
to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and, if entitled to vote, to vote
on matters submitted to the applicable stockholders, including an opportunity to read or hear the proceedings of the meeting substantially
concurrently with such proceedings, and (C) if any stockholder or proxy holder votes or takes other action at the meeting by means of
remote communication, a record of such votes or other action shall be maintained by the Corporation.
(b) Board Meetings. Unless
otherwise restricted by applicable law, the Certificate of Incorporation or these By Laws, members of the Board or any committee thereof
may participate in a meeting of the Board or any committee thereof by means of conference telephone or other communications equipment
by means of which all persons participating in the meeting can hear each other. Such participation in a meeting shall constitute presence
in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of
any business on the ground that the meeting was not lawfully called or convened.
Section 10.6. Dividends.
The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s
capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Certificate of Incorporation.
Section 10.7. Reserves.
The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may
abolish any such reserve.
Section 10.8. Contracts
and Negotiable Instruments. Except as otherwise provided by applicable law, the Certificate of Incorporation or these By Laws, any
contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the Corporation by
such officer or officers or other employee or employees of the Corporation as the Board may from time to time authorize. Such authority
may be general or confined to specific instances as the Board may determine. The Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, the Treasurer or any Vice President may execute and deliver any contract, bond, deed, lease, mortgage
or other instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed by the Board, the Chairman of the
Board Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Vice President may delegate powers to execute
and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation to other officers
or employees of the Corporation under such person’s supervision and authority, it being understood, however, that any such delegation
of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.
Section 10.10. Fiscal Year.
The fiscal year of the Corporation shall be fixed by the Board.
Section 10.10. Seal.
The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise reproduced.
Section 10.11. Books and
Records. The books and records of the Corporation may be kept within or outside the State of Delaware at such place or places as may
from time to time be designated by the Board.
Section 10.12. Resignation.
Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission to the Chairman
of the Board, the Chief Executive Officer, the President or the Secretary. The resignation shall take effect at the time it is delivered
unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. Unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 10.13. Surety Bonds.
Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board, Chief Executive Officer, President or the
Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the restoration to the Corporation,
in case of their death, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers, money and other
property of whatever kind in their possession or under their control belonging to the Corporation, in such amounts and by such surety
companies as the Chairman of the Board, Chief Executive Officer, President or the Board may determine. The premiums on such bonds shall
be paid by the Corporation and the bonds so furnished shall be in the custody of the Secretary.