BYLAWS
OF
SUPERIOR INDUSTRIES INTERNATIONAL, INC.
A Delaware Corporation
As adopted on May 15, 2015
Article
I
CORPORATE OFFICES
1.1 Registered Office
The address of the
registered office of Superior Industries International, Inc. (the “
Corporation
”) in the State of Delaware is
The Corporation Trust Center, 1209 Orange Street in the City of Wilmington, County of New Castle, Zip Code 19801. The name of
its registered agent at such address is the Corporation Trust Company. The registered office and/or registered agent of the Corporation
may be changed from time to time by action of the Board of Directors of the Corporation (the “
Board
”).
1.2 Other Offices
The Corporation may
also have offices at such other places, within or outside the State of Delaware, as the Board may from time to time authorize.
Article
II
DIRECTORS
2.1 Powers
Subject to the provisions
of the General Corporation Law of the State of Delaware (the “
DGCL
”), any limitations in the Certificate of
Incorporation of the Corporation (the “
Certificate of Incorporation
”) and these Bylaws (these “
Bylaws
”)
relating to action required to be approved by the stockholders or by the outstanding shares, the business and affairs of the Corporation
shall be managed and all corporate powers shall be exercised by or under the direction of the Board. The Board may delegate the
management of the day-to-day operation of the business of the Corporation to a management company or other person provided that
the business and affairs of the Corporation shall be managed and all corporate powers shall be exercised under the ultimate direction
of the Board.
2.2 Number
The authorized number
of directors of the Corporation shall be as set forth in a resolution of the Board. No reduction in the authorized number of directors
shall have the effect of removing any director before that director’s term of office expires.
2.3 Compensation
Directors and members
of committees may receive such compensation, if any, for their services, and may be reimbursed for expenses, as fixed or determined
by resolution of the Board. This
Section 2.3
shall not be construed to preclude any director from serving the Corporation
in any other capacity and receiving compensation for those services.
2.4 Election, Qualification
and Term of Office
Each director shall
be elected to hold office for a term expiring at the next annual meeting of stockholders or until such director’s successor
shall have been duly elected and qualified or until such director’s earlier death, resignation or removal. Directors need
not be stockholders unless so required by the Certificate of Incorporation or these Bylaws. The Certificate of Incorporation or
these Bylaws may prescribe other qualifications for directors.
2.5 Vacancies and
Resignations
(a) Vacancies and newly
created directorships resulting from any increase in the number of directors may be filled by a majority of the directors then
in office, although less than a quorum or by a sole remaining director, and each director so chosen shall hold office until his
or her successor is elected and qualified or until his or her earlier death, termination, resignation, retirement, disqualification
or removal from office. If there are no directors in office, then an election of directors may be held in the manner provided
by law. Vacancies created by the removal of a director for cause pursuant to
Section 2.7
may be filled at a meeting of
stockholders by the affirmative vote of the holders of a majority of the outstanding shares then entitled to vote at an election
of directors.
(b) Any director may
resign effective upon giving written notice to the Chairman of the Board, the President, the Secretary, or the Board, unless the
notice specifies a later time for the effectiveness of such resignation or an effective date determined upon the happening of
an event or events. If the resignation of a director is effective at a future time, the Board may elect a successor to take office
when the resignation becomes effective. Acceptance of such resignation shall not be necessary to make it effective.
(c) No reduction of
the authorized number of directors shall have the effect of removing any director prior to the expiration of such director’s
term of office.
2.6 Chairman of
the Board and Lead Directors
The Corporation may
have at the discretion of the Board, a Chairman of the Board and/or one or more Lead Directors. The Chairman of the Board, if
there is one, or a Lead Director, shall have the power to preside at all meetings of the Board and shall have such other powers
and shall be subject to such other duties as the Board may from time to time prescribe or as may be prescribed by these Bylaws.
If there is more than one Lead Director, the Board may prescribe different responsibilities to each Lead Director.
2.7 Removal
A director, or the
entire Board, may be removed, with or without cause, at a meeting of stockholders by the affirmative vote of the holders of a
majority of the outstanding shares then entitled to vote at an election of directors, unless otherwise prescribed by the Certificate
of Incorporation or by law;
provided
,
however
, that the notice of such meeting shall state that a purpose of such
meeting is to vote upon the removal of one or more of the directors named in the notice.
Article
III
OFFICERS
3.1 Officers
The officers of the
Corporation shall be a Chairman of the Board, a Chief Executive Officer or a President or both, a Secretary and a Chief Financial
Officer. The Corporation may also have, at the discretion of the Board, a Chairman of the Board, one or more Vice Presidents,
a Treasurer, one or more Assistant Secretaries, one or more Assistant Treasurers and such other officers as may be appointed in
accordance with the provisions of
Section 3.3
of these Bylaws. Unless the Certificate of Incorporation or these Bylaws
provide otherwise, any number of offices may be held by the same person.
3.2 Appointment
of Officers
The officers of the
Corporation, except such officers as may be appointed in accordance with the provisions of
Section 3.3
of these Bylaws,
shall be chosen by the Board and serve at the pleasure of the Board, subject to the rights, if any, of an officer under any contract
of employment.
3.3 Subordinate
Officers
The Board may appoint,
or may empower the Chairman of the Board, the Chief Executive Officer or the President to appoint such other officers as the business
of the Corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as
are provided in these Bylaws or as the Board or such delegatee may from time to time determine.
3.4 Term of Office
and Compensation
The term of office
and salary of each of said officers and the manner and time of the payment of such salaries shall be fixed and determined by the
Board and may be altered by the Board from time to time at its pleasure, subject to the rights, if any, of an officer under any
contract of employment.
3.5 Removal or Resignation
(a) Subject to the
rights, if any, of an officer under any contract of employment, all officers serve at the pleasure of the Board and any officer
may be removed, either with or without cause, by the Board or, except in the case of an officer chosen by the Board, by any officer
upon whom such power of removal may be conferred by the Board.
(b) Any officer may
resign at any time upon written notice to the Corporation, without prejudice to the rights, if any, of the Corporation under any
contract to which the officer is a party. Any resignation shall take effect at the date of the receipt of that notice or at any
later time specified in that notice, and, unless otherwise necessary to make it effective, the acceptance of the resignation shall
not be necessary to make it effective.
3.6 Vacancies
A vacancy in any office
because of death, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed by these
Bylaws for regular appointments to that office.
3.7 Chief Executive
Officer
The powers and duties
of the Chief Executive Officer are:
(a) To act as the general
manager and chief executive officer of the Corporation and, subject to the direction of the Board, to have general supervision,
direction and control of the business and affairs of the Corporation.
(b) To affix the signature
of the Corporation to all deeds, conveyances, mortgages, leases, obligations, bonds, certificates and other papers and instruments
in writing which have been authorized by the Board or which, in the judgment of the Chief Executive Officer, should be executed
on behalf of the Corporation; to sign certificates for shares of stock of the Corporation; and, subject to the direction of the
Board, to have general charge of the property of the Corporation and to supervise and control all officers, agents and employees
of the Corporation.
3.8 President
The powers and duties
of the President are:
(a) To act as a general
manager of the Corporation and, subject to the control of the Board, to have general supervision, direction and control of the
business and affairs of the Corporation.
(b) To affix the signature
of the Corporation to all deeds, conveyances, mortgages, leases, obligations, bonds, certificates and other papers and instruments
in writing which have been authorized by the Board or which, in the judgment of the President, should be executed on behalf of
the Corporation; to sign certificates for shares of stock of the Corporation; and, subject to the direction of the Board, to have
general charge of the property of the Corporation and to supervise and control all officers, agents and employees of the Corporation.
3.9 President Pro
Tem
If none of the Chairman
of the Board, any Lead Director, the Chief Executive Officer, the President, or any Vice President is present at any meeting of
the Board, a President pro tem may be chosen by the Board to preside and act at that meeting. If none of the Chief Executive Officer,
the President or any Vice President is present at any meeting of the stockholders, a President pro tem may be chosen to preside
at such meeting.
3.10 Vice President
The titles, powers
and duties of the Vice President or Vice Presidents shall be prescribed by the Board. In the absence, disability or death of the
Chief Executive Officer or the President, the Vice President, or one of the Vice Presidents, shall exercise all of his or her
powers and perform all of his or her duties. If there is more than one Vice President, the order in which the Vice Presidents
shall succeed to the powers and duties of the Chief Executive Officer or the President shall be as fixed by the Board.
3.11 Secretary
The powers and duties
of the Secretary are:
(a) To keep a book
of minutes at the principal executive office of the Corporation, or such other place as the Board may order, of all meetings of
the Board, its committees and the stockholders with the time and place of holding, whether regular or special, and, if special,
how authorized, the notice thereof given, the names of those present at directors’ meetings, the number of shares present
or represented at stockholders’ meetings and the proceedings thereof.
(b) To keep the seal
of the Corporation and to affix the same to all instruments which may require it.
(c) To keep or cause
to be kept at the principal executive office of the Corporation, or at the office of the transfer agent or agents, a record of
the stockholders of the Corporation, giving the names
and addresses of all stockholders and the number and class of shares held
by each stockholder, the number and date of any certificates issued for shares, appropriate records with respect to uncertificated
shares issued, the number and date of cancellation of every certificate surrendered for cancellation and the number and date of
every replacement certificate or the appropriate records for uncertificated shares issued for surrendered, lost, stolen or destroyed
certificates.
(d) To keep a supply
of certificates for shares of the Corporation, to fill in and sign all certificates issued or prepare the initial transaction
statement or written statements for uncertificated shares, and to make a proper record of each such issuance; provided that so
long as the Corporation shall have one or more duly appointed and acting transfer agents of the shares, or any class or series
of shares, of the Corporation, such duties with respect to such shares shall be performed by such transfer agent or transfer agents.
(e) To transfer upon
the share books of the Corporation or in accordance with a direct registration program as provided in
Section 7.4(b)
of
these Bylaws any and all shares of the Corporation; provided that so long as the Corporation shall have one or more duly appointed
and acting transfer agents of the shares, or any class or series of shares, of the Corporation, such duties with respect to such
shares shall be performed by such transfer agent or transfer agents, and the method of transfer of each share shall be subject
to the reasonable regulations of the transfer agent to which the shares are presented for transfer and, also, if the Corporation
then has one or more duly appointed and acting registrars, subject to the reasonable regulations of the registrar to which a new
certificate or a new issuance of shares is presented for registration; and provided, further, that no shares shall be issued,
recorded or delivered or, if issued, recorded or delivered, shall have any validity whatsoever until and unless such shares have
been signed or authenticated, as applicable, in the manner provided in
Section 7.4
of these Bylaws.
(f) To make service
and publication of all notices that may be necessary or proper and without command or direction from anyone. In case of the absence,
disability, refusal or neglect of the Secretary to make service or publication of any notices, then such notices may be served
and/or published by the Chief Executive Officer, the President or a Vice President, or by any person thereunto authorized by either
of them or by the Board or by the holders of a majority of the outstanding shares of the Corporation.
(g) Generally to do
and perform all such duties as pertain to such office and as may be required by the Board or these Bylaws.
3.12 Chief Financial
Officer
The powers and duties
of the Chief Financial Officer are:
(a) To supervise and
control the keeping and maintaining of adequate and correct accounts of the Corporation’s properties and business transactions,
including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, surplus and shares. The books
of account shall at all reasonable times be open to inspection by any director.
(b) To have the custody
of all funds, securities, evidences of indebtedness and other valuable documents of the Corporation and, at his or her discretion,
to cause any or all thereof to be deposited for the account of the Corporation with such depository as may be designated from
time to time by the Board.
(c) To receive or cause
to be received, and to give or cause to be given, receipts and acquittances for moneys paid for the account of the Corporation.
(d) To disburse, or
cause to be disbursed, all funds of the Corporation as may be directed by the Chief Executive Officer, the President or the Board,
taking proper vouchers for such disbursements.
(e) To render to the
Chief Executive Officer, the President or the Board, whenever any of them may require, accounts of all transactions as Chief Financial
Officer and of the financial condition of the Corporation.
(f) Generally to do
and perform all such duties as pertain to such office and as may be required by the Board or these Bylaws.
Article
IV
COMMITTEES
4.1 Committees of
the Board of Directors
The Board may, by resolution
of the Board adopted by a majority of the total number of authorized directors designate one or more committees, each consisting
of two (2) or more directors, to serve at the pleasure of the Board. The Board may designate one or more directors as alternate
members of any committee, who may replace any absent member at any meeting of the committee. The appointment of members or alternate
members of a committee requires the vote of a majority of the authorized number of directors. Any such committee shall have authority
to act in a manner and to the extent provided in the resolution of the Board and may have all the authority of the Board,
provided
,
however
, that no committee may take any action that is expressly required by Delaware Law, the Certificate of Incorporation
or these By-laws to be taken by the Board and not by a committee thereof. Each committee shall keep a record of its acts and proceedings,
which shall form a part of the records of the Corporation in the custody of the Secretary, and all actions of each committee shall
be reported to the Board at the next meeting of the Board.
Article
V
MEETINGS OF SHAREHOLDERS
5.1 Place of Meetings
(a) All annual or other
meetings of the stockholders of the Corporation shall be held at the principal executive office for the transaction of business
of the Corporation, or at any place within or without the State of Delaware, which may be designated from time to time by resolution
of the Board adopted by a majority of the total number of authorized directors (whether or not there exists any vacancies in previously
authorized directorships at the time any such resolution is presented to the Board for adoption).
(b) A meeting of the
stockholders may be conducted in whole or in part, by remote communication as provided in DGCL Section 211 if:
(i) the Corporation
implements 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 proxyholder;
(ii) the Corporation
implements reasonable measures to provide stockholders (in person or by proxy) a reasonable opportunity to participate in the
meeting and to vote on matters
submitted to the stockholders, including an opportunity to read and hear the proceedings of the
meeting concurrently with those proceedings; and
(ii) if any stockholder
or proxyholder votes or takes other action at the meeting by means of remote communication, the Corporation maintains a record
of the vote or action and any stockholder votes or other stockholder action is taken at the meeting.
5.2 Annual Meetings
The annual meeting
of stockholders shall be held on a date and at a time designated by the Board from time to time by resolution of the Board adopted
by a majority of the total number of authorized directors (whether or not there exists any vacancies in previously authorized
directorships at the time any such resolution is presented to the Board for adoption). The annual meeting shall be held for the
purpose of electing directors and the transaction of any other business that is properly brought before the meeting in accordance
with these Bylaws.
5.3 Special Meetings
(a) Special meetings
of the stockholders may be called at any time by the Board, the Chairman of the Board, the Chief Executive Officer, the President
or by one or more holders of shares entitled to cast not less than ten percent (10%) of the votes on the record date established
pursuant to
Section 5.9
of these Bylaws (the “
Requisite Holders
”).
(b) For a special meeting
of stockholders to be properly called at the request of the Requisite Holders, the request must be in writing and must be sent
by registered mail to the Chief Executive Officer, President, Vice President or Secretary, or delivered to any such officer in
person, and must include, as applicable, the information required by
Section 5.14
of these Bylaws.
It shall
be the duty of such officer, subject to the immediately succeeding sentence, to cause notice to be given to the stockholders entitled
to vote indicating that a meeting has been requested by the Requisite Holders, the date of which meeting shall be set by such
officer, to be not less than thirty-five (35) days nor more than sixty (60) days after the date of receipt of such request or,
if applicable, determination of the validity of such request pursuant to the immediately succeeding sentence. Within seven (7)
days after receiving such a written request from a stockholder or stockholders of the Corporation, the Board shall determine whether
holders of shares entitled to cast not less than ten percent (10%) of the votes as of the record date established pursuant to
Section 5.9
of these Bylaws for such request support the call of a special meeting and notify the requesting party or parties
of its finding, which notification will not constitute notice of the special meeting. If the notice of the special meeting is
not given within twenty (20) days after receipt of the request, the person(s) entitled to call the meeting may give the notice.
Nothing contained in this
Section 5.3
shall be construed as limiting, fixing or affecting the time when a meeting of stockholders
called by action of the Board may be held.
(c) At any
special meeting of the stockholders, only such business shall be conducted or considered as shall have been properly brought
before the special meeting. For business to be properly brought before a special meeting, it must be (1) specified in the
Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (2) otherwise
properly brought before the special meeting by or at the direction of the Board, or (3) otherwise properly requested to be
brought before a special meeting requested by the Requisite Holders in accordance with these Bylaws;
provided
,
however
,
notwithstanding anything in these Bylaws to the contrary, the Board may submit its own proposal or proposals for
consideration at any stockholder requested special meeting.
5.4 Notice of Meetings
Written notice of each
meeting of the stockholders stating the place, if any, date and time of the meeting, means of remote communications, if any, by
which stockholder 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 shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting,
to each stockholder entitled to vote at such meeting. The notice of any special meeting of stockholders shall state the purpose
or purposes for which the meeting is called. Business transacted at any special meeting of stockholders shall be limited to the
purpose or purposes stated in the notice. Neither the business to be transacted at, nor the purpose or purposes of, an annual
or special meeting of stockholders need be specified in any written waiver of notice
5.5 Consent to Stockholders’ Meetings
The transactions of
any meeting of stockholders, however called and noticed, and wherever held, are as valid as though had at a meeting duly held
after regular call and notice, if a quorum is present either in person or by proxy, and if, either before or after the meeting,
each of the stockholders entitled to vote, not present in person or by proxy, signs a written waiver of notice or a consent to
the holding of such meeting or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with
the corporate records or made a part of the minutes of the meeting. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened and except that attendance at a meeting is not a waiver of any right to
object to the consideration of matters required by the DGCL to be included in the notice but not so included, if such objection
is expressly made at the meeting.
5.6 Quorum
The presence in person
or by proxy of a majority of the shares entitled to vote at any meeting of stockholders shall constitute a quorum for the transaction
of business. Shares shall not be counted to make up a quorum for a meeting if voting of such shares at the meeting has been enjoined
or for any reason they cannot be lawfully voted at the meeting. The stockholders present at a duly called or held meeting at which
a quorum is present may continue to transact business until adjournment notwithstanding the withdrawal of enough stockholders
to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required
to constitute a quorum.
5.7 Adjourned Meetings
Any stockholders’
meeting, whether or not a quorum is present, may be adjourned from time to time by the vote of a majority of the shares, the holders
of which are either present in person or represented by proxy thereat, but, except as provided in
Section 5.6
of these
Bylaws, in the absence of a quorum, no other business may be transacted at such meeting. When any meeting of stockholders, either
annual or special, is adjourned to another time or place, notice need not be given of the adjourned meeting if its time and place
(or the means of electronic transmission by and to the Corporation or electronic video screen communication, if any, by which
the stockholders may participate) are announced at the meeting at which the adjournment is taken. When a meeting is adjourned
for more than thirty (30) days or if after adjournment a new record date is fixed for the adjourned meeting, a notice of the time
and place of the adjourned meeting shall be given to each stockholder of record entitled to vote at a meeting. At any adjourned
meeting the stockholders may transact any business which might have been properly transacted at the original meeting.
5.8 Record Date for Stockholder Notice;
Voting
(a) In order that the
Corporation may determine the stockholders entitled to notice of any meeting or to vote, the Board may fix, in advance, a record
date, which shall not be more than sixty (60) days nor less than ten (10) days prior to the date of such meeting nor more than
sixty (60) days before any other action. Only stockholders of record at the close of business on the record date are entitled
to notice of, and to vote at, a meeting of stockholders, notwithstanding any transfer of any shares on the books of the Corporation
after the record date, except as otherwise provided in the Certificate of Incorporation or the DGCL. In the absence of any contrary
provision in the Certificate of Incorporation or in any applicable statute relating to the election of directors or to other particular
matters, each such person shall be entitled to one vote for each share.
(b) A determination
of the stockholders of record entitled to notice of, and to vote at, a meeting of stockholders shall apply to any adjournment
of the meeting unless the Board fixes a new record date for the adjourned meeting, but the Board shall fix a new record date if
the meeting is adjourned for more than thirty (30) days from the date set for the original meeting.
(c) If the Board does
not so fix a record date, the record date for determining the stockholders entitled to notice of or 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.
(d) Except as otherwise
required by the DGCL or the Certificate of Incorporation, in all matters other than the election of directors, the affirmative
vote of a majority of the shares represented and voting at a duly held meeting at which a quorum is present (which shares voting
affirmatively also constitute at least a majority of the required quorum) shall be the act of the stockholders, unless the vote
of a greater number or voting by classes is required by the DGCL or the Certificate of Incorporation.
5.9 No Action by
Written Consent.
In accordance with
Article VII
of
the Certificate of Incorporation, any action required or permitted to be taken by the stockholders of the Corporation must be
effected at a duly called annual or special meeting of stockholders of this Corporation and may not be effected by any consent
in writing by such stockholders.
5.10 Election of
Directors.
Except as otherwise
required by the DGCL or the Certificate of Incorporation, directors shall be elected by a plurality of the voting power of the
shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Elections of
directors need not be by ballot except upon demand made by a stockholder at the meeting and before the voting begins.
5.11 Proxies
(a) Every person entitled
to vote shall have the right to do so either in person or by one or more agents authorized by a written proxy executed by such
person or such person’s duly authorized agent and filed with the Secretary. No proxy shall be valid (i) after revocation
thereof, unless the proxy is specifically made irrevocable and otherwise conforms to this
Section 5.11
and applicable law,
or (ii) after the expiration of eleven (11) months from the date thereof, unless the person executing it specifies therein the
length of time for which such proxy is to continue in force. Revocation may be effected by a writing delivered to the Secretary
stating that the proxy is revoked or by a subsequent proxy executed by, or by attendance at the meeting and voting in person by,
the person executing the proxy. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted,
a written notice of such death or incapacity is received by the Corporation.
(b) A proxy which states
that it is irrevocable is irrevocable for the period specified therein when it is held by any of the following or a nominee of
any of the following: (i) a pledgee, (ii) a person who has purchased or agreed to purchase or holds an option to purchase the
shares or a person who has sold a portion of such person’s shares in the Corporation to the maker of the proxy, (iii) a
creditor or creditors of the Corporation or the stockholder who extended or continued credit to the Corporation or the stockholder
in consideration of the proxy if the proxy states that it was given in consideration of such extension or continuation of credit
and the name of the person extending or continuing the credit, (iv) a person who has contracted to perform services as an employee
of the Corporation, if a proxy is required by the contract of employment and if the proxy states that it was given in consideration
of such contract of employment, the name of the employee and the period of employment contracted for, or (v) a person designated
by or under a close Corporation stockholder agreement or a voting trust agreement. In addition, a proxy may be made irrevocable
if it is given to secure the performance of a duty or to protect a title, either legal or equitable, until the happening of events
which, by its terms, discharge the obligation secured by it.
(c) Notwithstanding
the period of irrevocability specified, the proxy becomes revocable when the pledge is redeemed, the option or agreement to purchase
is terminated or the seller no longer owns any shares of the Corporation or dies, the debt of the Corporation or the stockholder
is paid, the period of employment provided for in the contract of employment has terminated or the close Corporation stockholder
agreement or the voting trust agreement has terminated. In addition, a proxy may be revoked, notwithstanding a provision making
it irrevocable, by a purchaser of shares without knowledge of the existence of the provision unless the existence of the proxy
and its irrevocability appears on the certificate representing such shares or, in the case of uncertificated shares, on the initial
transaction statement and written statements.
(d) Every form of proxy,
which provides an opportunity to specify approval or disapproval with respect to any proposal, shall also contain an appropriate
space marked “abstain”, whereby a stockholder may indicate a desire to abstain from voting his or her shares on the
proposal. A proxy marked “abstain” by the stockholder with respect to a particular proposal shall not be voted either
for or against such proposal. In any election of directors, any form of proxy in which the directors to be voted upon are named
therein as candidates and which is marked by a stockholder “withhold” or otherwise marked in a manner indicating that
the authority to vote for the election of directors is withheld shall not be voted either for or against the election of a director.
5.12 Inspectors
of Elections
Before any meeting
of stockholders, the Board may appoint any persons other than nominees for office to act as inspectors of election at the meeting
or its adjournment. If inspectors of election are not so appointed, or if any persons so appointed fail to appear or refuse to
act, the chairman of any meeting of stockholders may, and on the request of any stockholder or a stockholder’s proxy shall, appoint
inspectors of election (or persons to replace those who so fail or refuse) at the meeting. The number of inspectors shall be either
one (l) or three (3). If inspectors are appointed at a meeting on the request of one or more stockholders or proxies, the holders
of a majority of shares represented in person or by proxy at the meeting, shall determine whether one (l) or three (3) inspectors
are to be appointed. If there are three inspectors, the decision, act, or certificate of a majority is effective in all respects
as the decision, act or certificate of all. The duties of inspectors shall include the following:
(a) determine the number
of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum, and the
authenticity, validity, and effect of proxies;
(b) receive votes or
ballots;
(c) hear and determine
all challenges and questions in any way arising in connection with the right to vote;
(d) count and tabulate
all votes;
(e) determine when
the polls shall close;
(f) determine the result;
and
(g) do any other acts
that may be proper to conduct the election or vote with fairness to all stockholders.
5.13 Advance Notice
of Stockholder Business and Nominations
(a)
Advance Notice
of Stockholder Business.
At any annual meeting of the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual meeting, business must be brought: (A) pursuant to
the Corporation’s notice of meeting, given by or at the direction of the Board, as included in its proxy materials (or any
supplement thereto) with respect to such meeting, (B) by or at the direction of the Board or any duly authorized committee thereof,
or (C) by any stockholder of the Corporation who (1) is a stockholder of record at the time that the notice required by this
Section
5.13(a)
is delivered to the Secretary of the Corporation and on the record date for the determination of stockholders entitled
to vote at the annual meeting and (2) has timely complied in proper written form with the notice procedures set forth in this
Section 5.13(a)
. In addition, for business to be properly brought before an annual meeting by a stockholder, such business
must be a proper matter for stockholder action pursuant to these Bylaws and under the DGCL. Except for proposals properly made
in accordance with Rule 14a-8 under the Securities and Exchange Act of 1934, as amended, and the rules and regulations thereunder
(as so amended and inclusive of such rules and regulations, the “
Exchange Act
”), and included in the notice
of meeting given by or at the direction of the Board, for the avoidance of doubt, clause (C) above shall be the exclusive means
for a stockholder to bring business before an annual meeting of stockholders.
(i) To comply with
clause (C) of
Section 5.13(a)
above, a stockholder’s notice with respect to any business (other than the nomination
of persons for election as directors) that the stockholder proposes to bring before the meeting must set forth all information
required under this
Section 5.13(a)
and must be timely received by the Secretary of the Corporation. To be timely, a stockholder’s
notice must be received by the Secretary at the principal executive offices of the Corporation not later than the close of business
on the ninetieth (90th) day nor earlier than the close of business on the one-hundred twentieth (120th) day prior to the one-year
anniversary of the date of the preceding year’s annual meeting;
provided
,
however
, that in the event that
no annual meeting was held in the previous year or if the date of the annual meeting is advanced by more than thirty (30) days
prior to or delayed by more than sixty (60) days after the one-year anniversary of the date of the preceding year’s annual
meeting, then, for notice by the stockholder to be timely, it must be so received by the Secretary not earlier than the close
of business on the one-hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on
the later of (i) the ninetieth (90th) day prior to such annual meeting, or (ii) the tenth (10th) day following the day on which
Public Announcement (as defined below) of the date of such annual meeting is first made. In no event shall any adjournment or
postponement of an annual meeting or the announcement thereof commence a new time period (or extend any time period) for the giving
of a stockholder’s notice as described in this
Section 5.13(a)(i)
. For purposes of these Bylaws, “
Public
Announcement
” shall mean disclosure (a) in a press release reported by the Dow Jones News Service, Associated Press
or a comparable national news service, (b) in a document publicly filed by the Corporation with the United States Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act, (c) in a notice pursuant to the applicable rules
of a stock exchange on which
the securities of the Corporation are listed, (d) in a notice published on the Corporation’s
website, or (e) another method of broad-based dissemination.
(ii) To be in
proper written form, a stockholder’s notice to the Secretary must set forth as to each matter of business the
stockholder intends to bring before the meeting: (1) a brief description of the business intended to be brought before the
meeting, (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 Bylaws of the Corporation, the language of the proposed
amendment), (3) the reasons for conducting such business at the meeting, (4) the name and address, as they appear on the
Corporation’s books, of the stockholder proposing such business and any Stockholder Associated Person (as defined
below), (5) the class or series and number of shares of the capital stock of the Corporation that are, directly or
indirectly, held of record or are beneficially owned by the stockholder or any Stockholder Associated Person and any
derivative positions with respect to shares of capital stock of the Corporation held or beneficially held by or on behalf of
such stockholder or any Stockholder Associated Person, (6) whether and the extent to which any hedging or other transaction
or series of transactions has been entered into by or on behalf of such stockholder or any Stockholder Associated Person with
respect to any securities of the Corporation, and a description of any other agreement, arrangement or understanding
(including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to,
or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such
stockholder or any Stockholder Associated Person with respect to any securities of the Corporation, (7) any material interest
of the stockholder or any Stockholder Associated Person in such business, (8) a reasonably detailed description of all
agreements, arrangements and understandings (x) between or among the stockholder and any Stockholder Associated Person or (y)
between or among the stockholder or any Stockholder Associated Person and any other person or entity (including their names)
in connection with the proposal of such business by such stockholder, including without limitation any agreements that would
be required to be disclosed pursuant to Item 5 or Item 6 of a Schedule 13D that would be filed pursuant to the Exchange Act
(regardless of whether the requirement to file a Schedule 13D is applicable to the stockholder or any Stockholder Associated
Person or other person or entity), (9) a representation that such stockholder is a holder of record of stock of the
Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such
business, and (10) a representation whether such stockholder or any Stockholder Associated Person intends or is part of a
group that intends (x) to deliver a proxy statement and/or form of proxy to the holders of at least the percentage of the
Corporation’s outstanding capital stock required to approve or adopt the proposal or (y) otherwise to solicit proxies
from stockholders in support of such proposal (such information provided and statements made as required by clauses (1)
through (10), a “
Business Solicitation Statement
”). In addition, to be in proper written form, a
stockholder’s notice to the Secretary must be supplemented not later than ten (10) days following the record date for
notice of the meeting to disclose the information contained in clauses (5) and (6) above as of the record date for notice of
the meeting. For purposes of this
Section 5.13
, a “
Stockholder Associated Person
” of any
stockholder shall mean (i) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such
stockholder and on whose behalf the proposal or nomination, as the case may be, is being made, (ii) any Affiliate or
Associate (each within the meaning of Rule 12b-2 under the Exchange Act for purposes of these Bylaws) of such stockholder or
beneficial owner, (iii) any person controlling, controlled by or under common control with any person referred to in the
preceding clauses (i) and (ii), and (iv) any other person with whom such stockholder or beneficial owner (or any of their
respective Affiliates or Associates) is Acting in Concert (as defined below). A person shall be deemed to be “
Acting
in Concert
” with another person for purposes of these Bylaws if such person knowingly acts (whether or not pursuant
to an express agreement, arrangement or understanding) in concert with, or towards a common goal relating to the management,
governance or control of the Corporation in parallel with, such other person where (A) each person is conscious of the other
person’s conduct or intent and this awareness is an element in their decision-making processes and (B) at least one
additional factor suggests
that such persons intend to act in concert or in parallel, which such additional factors may
include, without limitation, exchanging information (whether publicly or privately and directly or indirectly, including
through counsel), attending meetings, conducting discussions, or making or soliciting invitations to act in concert or in
parallel; provided, that a person shall not be deemed to be Acting in Concert with any other person solely as a result of the
solicitation or receipt of revocable proxies from such other person in response to a solicitation made pursuant to, and in
accordance with, Section 14(a) of the Exchange Act by way of a proxy solicitation statement filed with the SEC on
Schedule 14A. A person Acting in Concert with another person shall be deemed to be Acting in Concert with any third party who
is also Acting in Concert with such other person.
(iii) Without exception,
no business shall be conducted at any annual meeting except in accordance with the provisions set forth in this
Section 5.13(a)
and, if applicable,
Section 5.13(b)
. In addition, business proposed to be brought by a stockholder may not be brought
before the annual meeting if such stockholder or a Stockholder Associated Person, as applicable, takes action contrary to the
representations made in the Business Solicitation Statement applicable to such business or if the Business Solicitation Statement
applicable to such business contains an untrue statement of a material fact or omits to state a material fact necessary to make
the statements therein not misleading. The chairperson of the annual meeting shall, if the facts warrant, determine and declare
at the annual meeting that business was not properly brought before the annual meeting and in accordance with the provisions of
this
Section 5.13(a)
, and, if the chairperson should so determine, he or she shall so declare at the annual meeting that
any such business not properly brought before the annual meeting shall not be conducted.
(b)
Advance Notice
of Director Nominations at Annual Meetings.
Notwithstanding anything in these Bylaws to the contrary, only persons who are
nominated in accordance with the procedures set forth in this
Section 5.13(b)
shall be eligible for election or re-election
as directors at an annual meeting of stockholders. Nominations of persons for election or re-election to the Board shall be made
at an annual meeting of stockholders only (1) by or at the direction of the Board or (2) by a stockholder of the Corporation who
(a) was a stockholder of record at the time that the notice required by this
Section 5.13(b)
is delivered to the Secretary
of the Corporation and on the record date for the determination of stockholders entitled to vote at the annual meeting and who
is entitled to vote at the meeting and upon such election, and (b) has timely complied in proper written form with the notice
procedures set forth in this
Section 5.13(b)
.
(i) To comply with
clause (2) of
Section 5.13(b)
above, a nomination to be made by a stockholder must set forth all information required under
this
Section 5.13(b)
and must be received by the Secretary of the Corporation at the principal executive offices of the
Corporation at the time set forth in, and in accordance with, the final three sentences of
Section 5.13(a)(i)
above.
In
the event that the number of directors to be elected to the Board of the Corporation at an annual meeting is increased and there
is no Public Announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board
at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s
notice required by this
Section 5.13(b)
shall also be considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be delivered to the Secretary of the Corporation at the principal executive offices
of the Corporation not later than the close of business on the tenth (10th) day following the day on which such Public Announcement
is first made by the Corporation.
(ii) To be in proper
written form, such stockholder’s notice to the secretary must set forth:
(1) as to each person
(a “
nominee
”) whom the stockholder proposes to nominate for election or re-election as a director: (A) the
name, age, business address and residence
address of the nominee, (B) the principal occupation or employment of the nominee, (C)
the class and number of shares of the Corporation that are held of record or are beneficially owned by the nominee and any derivative
positions held or beneficially held by the nominee, (D) whether and the extent to which any hedging or other transaction or series
of transactions have been entered into by or on behalf of the nominee with respect to any securities of the Corporation, and a
description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of
shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit of share price changes for, or
to increase or decrease the voting power of the nominee, (E) a description of all arrangements or understandings between the stockholder
and each nominee and any other person or persons (naming such person or persons) pursuant to which the nominations are to be made
by the stockholder, (F) a written statement executed by the nominee acknowledging that as a director of the Corporation, the nominee
will owe a fiduciary duty under Delaware law with respect to the Corporation and its stockholders, and (G) any other information
relating to the nominee that would be required to be disclosed about such nominee if proxies were being solicited for the election
or re-election of the nominee as a director in an election contest,
or that is otherwise required, in each case pursuant to Regulation 14A under the Exchange Act (including, without limitation,
the nominee’s written consent to being named in the proxy statement, if any, as a nominee and to serving as a director if
elected or re-elected, as the case may be); and
(2) as to such stockholder
giving notice, (A) the information required to be provided pursuant to clauses (4) through (9) of
Section 5.13(a)(ii)
above,
and the supplement referenced in the second sentence of
Section 5.13(a)(ii)
above (except that the references to “business”
or “proposal” in such clauses shall instead refer to nominations of directors for purposes of this paragraph), and
(B) a statement whether such stockholder or Stockholder Associated Person intends or is part of a group that 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
reasonably believed by such stockholder or Stockholder Associated Person to be necessary to elect or re-elect such nominee(s)
or (y) otherwise to solicit proxies from stockholders in support of the election or re-election of such nominee(s) (such information
provided and statements made as required by clauses (A) and (B) above, a “
Nominee Solicitation Statement
”).
(iii) At the request
of the Board, any person nominated by a stockholder for election or re-election as a director must furnish to the Secretary of
the Corporation (a) that information required to be set forth in the stockholder’s notice of nomination of such person as
a director updated as of a date subsequent to the date on which the notice of such person’s nomination was given, and (b)
such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee
to serve as an “independent director” or “audit committee financial expert” of the Corporation under applicable
law, securities exchange rule or regulation, or any publicly-disclosed corporate governance guideline or committee charter of
the Corporation and (c) that could be material to a reasonable stockholder’s understanding of the independence, or lack
thereof, of such nominee; in the absence of the furnishing of such information if requested, such stockholder’s nomination
shall not be considered in proper form pursuant to this
Section 5.13(b)
.
(iv) Without exception,
no person shall be eligible for election or re-election as a director of the Corporation at an annual meeting of stockholders
unless nominated in accordance with the provisions set forth in this
Section 5.13(b)
. In addition, a nominee shall not
be eligible for election or re-election if a stockholder or Stockholder Associated Person, as applicable, takes action contrary
to the representations made in the Nominee Solicitation Statement applicable to such nominee or if the Nominee Solicitation Statement
applicable to such nominee contains an untrue statement of a material fact or omits to state a material fact necessary to make
the statements therein not misleading. The chairperson of the annual meeting shall, if the facts warrant, determine and declare
at the annual meeting that a nomination was not made in accordance with the provisions prescribed by these bylaws, and if the
chairperson should
so determine, he or she shall so declare at the annual meeting, and the defective nomination shall be disregarded.
(c)
Advance Notice
of Director Nominations for Special Meetings.
(i) In the event the
Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, nominations
of persons for election or re-election to the Board shall be made only (1) by or at the direction of the Board or any duly authorized
committee thereof or (2) by any stockholder of the Corporation who (A) is a stockholder of record (i) at the time the notice provided
for in this
Section 5.13(c)
is delivered to the Secretary of the Corporation and (ii) on the record date for the determination
of stockholders entitled to vote at the special meeting, and who is entitled to vote at the meeting and upon such election,
and
(B) delivers a timely written notice of the nomination to the Secretary of the Corporation that includes the information set forth
in
Section 5.13(b)(ii)
and
Section 5.13(b)(iii)
above. A nominee shall not be eligible for election at a special
meeting of stockholders if a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the representations
made in the Nominee Solicitation Statement applicable to such nominee or if the Nominee Solicitation Statement applicable to such
nominee contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein
not misleading.
(ii) To be timely,
such advance notice of director nominations must be received by the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than
the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following
the day on which Public Announcement is first made of the date of the special meeting and of the nominees proposed by the Board
to be elected or re-elected at such meeting. In no event shall the Public Announcement of an adjournment or postponement of a
special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described
above.
(iii) Any stockholder
or stockholders seeking to call a special meeting of stockholders pursuant to, and in accordance with,
Article 5
,
Section
5.3
, of these Bylaws shall provide information comparable to that required by the preceding
Sections 5.13(a)
and
Section
5.13(b)
, to the extent applicable, in any request for a special meeting of stockholders made pursuant to such Article and
Section.
(d)
General.
(i) Only such persons
who are nominated in accordance with the procedures set forth in this
Section 5.13
shall be eligible to be elected at an
annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at
a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this
Section
5.13
.
(ii) A
stockholder providing notice of any business proposed to be conducted, or the nomination of one or more candidates for
election to the Board for consideration, at a meeting shall further update and supplement such notice, if necessary, from
time to time, so that the information provided or required to be provided in such notice pursuant to this
Section 5.13
shall be true and correct in all material respects, and such update and supplement shall be received by the Secretary of the
Corporation not later than five (5) Business days following the occurrence of any event, development or occurrence which
would cause the information provided to be not true and correct in all material respects.
(iii) If the information
submitted pursuant to this
Section 5.13
by any stockholder proposing business or the nomination of one or more candidates
for election to the Board for
consideration at a meeting shall be inaccurate to any material extent, such information may be deemed
not to have been provided in accordance with this
Section 5.13
. Upon written request by the Secretary of the Corporation,
the Board or any committee thereof, any stockholder proposing business for consideration at a meeting shall provide, within five
(5) Business Days of delivery of such request (or such other period as may be specified in such request), written verification,
satisfactory in the reasonable discretion of 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 5.13
. 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 5.13
.
(iv) Except as otherwise
provided by law, the chairman of the meeting shall have the power and duty (1) to determine whether a nomination or any business
proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth
in this
Section 5.13
and (2) if any proposed nomination or business was not made or proposed in compliance with this
Section
5.13
, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted.
(v) Notwithstanding
the foregoing provisions of this
Section 5.13
, unless otherwise required by law, if the stockholder (or a qualified representative
of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination
or proposed business, such nomination shall be disregarded and such proposed business shall not be considered, notwithstanding
that proxies in respect of such vote may have been received by the Corporation. For purposes of this
Section 5.13
, to be
considered a qualified representative of the stockholder, a person must be authorized by a writing executed by such stockholder
or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders
and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic
transmission, at the meeting of stockholders.
(vi) Nothing in this
Section 5.13
shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals or nominations
in the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor thereto) promulgated under the Exchange Act
(and any proposal included in the Corporation’s proxy statement pursuant to such Rule shall not be subject to any of the
advance notice requirements in this
Section 5.13
) or (b) of the holders of any series of preferred stock to nominate and
elect directors pursuant to and to the extent provided in any applicable provisions of the Certificate of Incorporation.
5.14 Conduct of
Meetings.
(a)
Officers of
the Meeting
. The Chairman of the Board, or in the absence of the Chairman, the President, or in their absence, the Vice Chairman,
or if no such officer is present, a director designated by the Board, shall call meetings of the stockholders to order and shall
act as chairman of the meeting. The Secretary, or in the absence of the Secretary, an Assistant Secretary, shall act as secretary
of the meeting of the stockholders, but in the absence of the Secretary and Assistant Secretary at a meeting of the stockholders
the chairman of the meeting may appoint any person to act as secretary of the meeting.
(b)
Order of Business
.
The chairman of the meeting shall have the right to determine the order of business at the meeting.
(c)
Meeting Protocol
.
To the maximum extent permitted by applicable law, the Board shall be entitled to make such rules or regulations for the conduct
of meetings of stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and regulations of the
Board, if any, the chairman of the meeting shall have the right and authority to prescribe such rules, regulations and
procedures
and take such action as, in the discretion of such chairman, are deemed necessary, appropriate or convenient for the proper conduct
of the meeting. Such rules, regulations and procedures, whether adopted by the Board or prescribed by the chairman of the meeting,
may include, without limitation, the following: (i) establishing an agenda for the meeting and the order for the consideration
of the items of business on such agenda; (ii) restricting admission to the time set for the commencement of the meeting; (iii)
limiting attendance at the meeting to stockholders of record of the Corporation entitled to vote at the meeting, their duly authorized
proxies or other such persons as the chairman of the meeting may determine; (iv) limiting participation at the meeting on any
matter to stockholders of record of the Corporation entitled to vote on such matter, their duly authorized proxies or other such
persons as the chairman of the meeting may determine to recognize and, as a condition to recognizing any such participant, requiring
such participant to provide the chairman of the meeting with evidence of his or her name and affiliation, whether he or she is
a stockholder or a proxy for a stockholder, and the class and series and number of shares of each class and series of capital
stock of the Corporation which are owned beneficially and/or of record by such stockholder; (v) limiting the time allotted to
questions or comments by participants; (vi) taking such actions as are necessary or appropriate to maintain order, decorum, safety
and security at the meeting; (viii) removing any stockholder who refuses to comply with meeting procedures, rules or guidelines
as established by the chairman of the meeting; and (viii) complying with any state and local laws and regulations concerning safety
and security. Unless otherwise determined by the chairman of the meeting, meetings of stockholders shall not be required to be
held in accordance with the rules of parliamentary procedure.
Article
VI
MEETINGS OF DIRECTORS
6.1 Place of Meetings
Meetings (whether regular,
special or adjourned) of the Board shall be held at the principal office of the Corporation for the transaction of business, as
specified in accordance with
Section 1.1
of these Bylaws, or at any other place within or without the State of Delaware
which has been designated from time to time by resolution of the Board or which is designated in the notice of the meeting. Any
meeting (whether regular, special or adjourned) may be held by conference telephone, electronic video screen communication or
electronic communication by and to the Corporation. Participation in a meeting through the use of conference telephone or electronic
video screen communication pursuant to this
Section 6.1
constitutes presence in person at that meeting so long as all members
participating in the meeting are able to hear one another. Participation in a meeting through electronic transmission by and to
the Corporation (other than conference telephone and electronic video screen communication), pursuant to this
Section 6.1
constitutes presence in person at that meeting if both of the following apply:
(a) each member participating
in the meeting can communicate with all of the other members concurrently; and
(b) each member is
provided the means of participating in all matters before the Board, including, without limitation, the capacity to propose, or
to interpose an objection to, a specific action to be taken by the Corporation.
(c) the Corporation
adopts and implements some means of verifying both of the following:
(i) A person participating in the meeting
is a director or other person entitled to participate in the meeting; and
(ii) All actions of, or votes by, the Board
are taken or cast only by the directors and not by persons who are not directors.
6.2 Regular Annual
Meeting; Regular Meetings
After the adjournment
of each annual meeting of the stockholders, the Board shall hold a regular meeting (which regular directors’ meeting shall
be designated the “
Regular Annual Meeting
”) and no notice need be given for the Regular Annual Meeting unless
the Regular Annual Meeting is not held at the principal place of business provided at
Section 1.1
of these Bylaws. Regular
meetings of the Board may be held without notice if the time and place of such meetings are fixed by the Board.
6.3 Special Meetings
Special meetings of
the Board may be called at any time by the Chairman of the Board, if any, the Lead Director, if any, the Chief Executive Officer,
the Secretary or by a majority of the authorized number of directors.
6.4 Notice of Special
Meetings
Special meetings of
the Board shall be held upon no less than four (4) days’ notice by mail or forty-eight (48) hours’ notice delivered
personally or by telephone to each director, including by a voice messaging system or by electronic transmission by the Corporation.
6.5 Quorum
At all meetings of
the Board, a majority of the authorized number of directors shall constitute a quorum for the transaction of business, except
to adjourn as provided by
Section 6.6
of these Bylaws. Every act by a majority of the directors present at a meeting duly
held at which a quorum is present is the act of the Board, subject to the provisions of the Certificate of Incorporation, these
Bylaws or other applicable law. A meeting at which a quorum is initially present may continue to transact business notwithstanding
the withdrawal of directors, if any action taken is approved by at least a majority of the required quorum for such meeting.
6.6 Adjournment
A majority of the directors
present, whether or not a quorum is present, may adjourn any meeting to another time and place. Notice of the time and place of
holding an adjourned meeting need not be given to absent directors if the time and place are fixed at the meeting adjourned, except
as provided in the next sentence. If the meeting is adjourned for over twenty-four (24) hours, notice of any adjournment to another
time and place shall be given prior to the time of the adjourned meeting to the directors who were not present at the time of
adjournment.
6.7 Waiver and Notice
of Consent
Notice of a meeting
need not be given to a director who provides a waiver of notice or a consent to holding the meeting or an approval of the minutes
of the meeting in writing, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or
at its commencement, the lack of notice to such director. All such waivers, consents and approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
6.8 Action without
a Meeting
Unless otherwise restricted
by the Certificate of Incorporation or these Bylaws, any action required or permitted by law to be taken by the Board may be taken
without a meeting, if all members of the Board shall individually or collectively consent in writing or by electronic transmission
to such action. Such writing or writings or electronic transmission or transmissions shall be filed with the minutes of the proceedings
of the Board. Such filing shall be in paper form if the minutes or proceedings of the Board are maintained in paper form and shall
be in electronic form in the minutes are maintained in electronic form. Such action by written consent shall have the same force
and effect as the unanimous vote of such directors.
6.9 Committees
The provisions of this
Article VI
also apply to committees of the Board and action by such committees, mutatis mutandis.
Article
VII
GENERAL MATTERS
7.1 Record Date
for Purposes Other than Notice and Voting
For purposes of determining
the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise
any rights in respect of any other lawful action (other than with respect to notice or voting at a stockholders’ meeting),
the Board may fix, in advance, a record date, which shall not be more than sixty (60) days nor less than ten (10) days prior to
any such action. Only stockholders of record at the close of business on the record date are entitled to receive the dividend,
distribution or allotment of rights, or to exercise the rights, as the case may be, notwithstanding any transfer of any shares
on the books of the Corporation after the record date, except as otherwise provided for in the Certificate of Incorporation or
the DGCL.
7.2 Instruments
in Writing
All checks, drafts,
other orders for payments of money, notes or other evidences of indebtedness of the Corporation, and all written contracts of
the Corporation, shall be signed by such officer or officers, agent or agents, as the Board may from time to time designate. No
officer, agent, or employee of the Corporation shall have the power to bind the Corporation by contract or otherwise unless authorized
to do so by these Bylaws or by the Board.
7.3 Shares Held
by the Corporation
Shares in other corporations
standing in the name of the Corporation may be voted or represented and all rights incident thereto may be exercised on behalf
of the Corporation by any officer of the Corporation authorized to do so by resolution of the Board. The authority herein granted
may be exercised either by such person directly or by any other person authorized to do so by proxy or by power of attorney duly
executed by such person having the authority.
7.4 Certificated
and Uncertificated Shares
(a) Certificates for
the shares of stock of the Corporation shall be issued only to the extent as may be required by applicable law or as otherwise
authorized by the Secretary or any Assistant Secretary, and if so issued shall be in such form as is consistent with the Certificate
of Incorporation and applicable law. Any such certificates shall be signed by, or in the name of the Corporation by, the Chief
Executive Officer or the President and by the Secretary or any Assistant Secretary, certifying the number
of shares and the class
or series of shares owned by the stockholder. Any or all of the signatures on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such
officer transfer, agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect
as if such person were an officer, transfer agent or registrar at the date of issue.
(b) Notwithstanding
any other provision in these Bylaws, the Corporation may adopt a system of issuance, recordation and transfer of its shares by
electronic or other means not involving any issuance of certificates, including provisions for notice to purchasers in substitution
for any required statements on certificates, and as may be required by applicable corporate securities laws, which system has
been approved by the United States Securities and Exchange Commission. Any system so adopted shall not become effective as to
issued and outstanding certificated securities until the certificates therefore have been surrendered to the Corporation.
7.5 Lost Certificates
Except as provided
in this
Section 7.5
, no new shares shall be issued to replace a previously issued certificate unless the certificate is
surrendered to the Corporation or its transfer agent or registrar and cancelled at the same time. When the owner of any certificate
for shares of the Corporation claims that the certificate has been lost, stolen or destroyed, uncertificated shares, in accordance
with
Section 7.4(b)
above, shall be issued in place of the original certificate if the owner (a) so requests before the
Corporation has notice that the original certificate has been acquired by a bona fide purchaser, (b) files with the Corporation
an indemnity bond in such form and in such amount sufficient to protect the Corporation against any claim that may be made against
it, including any expense or liability, on account of the alleged loss, theft or destruction of the certificate or the issuance
of the replacement shares, and (c) satisfies any other reasonable requirements imposed by the Corporation. The Board may adopt
such other provisions and restrictions with reference to lost certificates, not inconsistent with applicable law, as it shall
in its discretion deem appropriate.
7.6 Certification
and Inspection of Bylaws
The Corporation shall
keep at its principal executive or business office the original or a copy of these Bylaws as amended or otherwise altered to date,
which shall be open to inspection by the stockholders at all reasonable times during office hours.
7.7 Interpretation
Reference in these
Bylaws to any provision of the DGCL shall be deemed to include all amendments thereof.
7.8 Construction
Unless the context
requires otherwise, the general provisions, rules of construction and definitions in the DGCL shall govern the construction of
these Bylaws. Without limiting the generality of the provision, the singular number includes the plural, the plural number includes
the singular, and the term “person” includes both a corporation and a natural person. The term “Chief Executive
Officer” shall be equivalent to the term “President” under the DGCL.
Article
VIII
CONSTRUCTION OF BYLAWS WITH REFERENCE TO PROVISIONS OF LAW
8.1 Bylaw Provisions
Additional and Supplemental to Provisions of Law
All restrictions, limitations,
requirements and other provisions of these Bylaws shall be construed, insofar as possible, as supplemental and additional to all
provisions of law applicable to the subject matter thereof and shall be fully complied with in addition to the said provisions
of law unless such compliance shall be illegal.
8.2 Bylaw Provisions
Contrary to or Inconsistent with Provisions of Law
Any article, section,
subsection, subdivision, sentence, clause or phrase of these Bylaws which, upon being construed in the manner provided in
Section
8.1
of these Bylaws, shall be contrary to or inconsistent with any applicable provision of law, shall not apply so long as
said provisions of law shall remain in effect, but such result shall not affect the validity or applicability of any other portions
of these Bylaws, it being hereby declared that these Bylaws, and each article, section, subsection, subdivision, sentence, clause,
or phrase thereof, would have been adopted irrespective of the fact that any one or more articles, sections, subsections, subdivisions,
sentences, clauses or phrases is or are illegal.
Article
IX
ADOPTION, AMENDMENT OR REPEAL OF BYLAWS
9.1 By Stockholders
As provided by
Article
X
of the Certificate of Incorporation, these Bylaws may be adopted, amended or repealed by the vote of the holders of at least
a majority of the voting power of all of the then outstanding shares entitled to vote generally in the election of directors,
voting together as a single class.
9.2 By the Board
Subject to the right
of stockholders to adopt, amend or repeal these Bylaws, other than a bylaw or amendment thereof specifying or changing a fixed
number of directors or the maximum or minimum number or changing from a fixed to a variable board or vice versa, these Bylaws
may be adopted, amended or repealed by the Board. A bylaw adopted by the stockholders may restrict or eliminate the power of the
Board to adopt, amend or repeal these Bylaws.
Article
X
INDEMNIFICATION
10.1 Third Party Actions
.
The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action,
suit or proceeding, whether civil, criminal, administrative, or investigative, including all appeals (other than an action, suit
or proceeding by or in the right of the Corporation) by reason of the fact that he or she is or was a director or office of the
Corporation (and the Corporation, in the discretion of the Board, may so indemnify a person by reason of the fact that he or she
is or was an employee or agent of the Corporation or is or was serving at the request of the Corporation in any other capacity
for another corporation, partnership, joint venture, trust or other enterprise), against expenses (including attorneys’
fees), judgments, decrees, fines, penalties, and amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action, suit or proceeding if he or she acted in good faith and in a manner which he or she reasonably believed
to be in or
not opposed to the best interests of the Corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the
person did not act in good faith or in a manner which he or she reasonably believed to be in or not opposed to the best interests
of the Corporation and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was
unlawful. Notwithstanding the foregoing, the Corporation shall be required to indemnify a director or officer in connection with
an action, suit or proceeding as authorized by the Board.
10.2 Actions by
or in the Right of the Corporation.
The Corporation shall
indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action
or suit, including all appeals, by or in the right of the Corporation to procure a judgment in its favor by reason of the fact
that he or she is or was a director or officer of the Corporation (and the Corporation, in the discretion of the Board, may so
indemnify a person by reason of the fact that he or she is or was an employee or agent of the Corporation or is or was serving
at the request of the Corporation in any other capacity for another corporation, partnership, joint venture, trust or other enterprise),
against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection with the defense
or settlement of such action or suit if he or she acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been finally adjudged to be liable to the Corporation unless and only to the extent
that the court in which such action or suit was brought, or any other court of competent jurisdiction, shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as such court shall deem proper. Notwithstanding the foregoing, the Corporation shall
be required to indemnify a director or officer in connection with an action, suit or proceeding initiated by such person only
if such action, suit or proceeding was authorized by the Board.
10.3 Indemnity if
Successful.
To the extent that
a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in
Section 10.1
or
Section 10.2
or in defense of any claim, issue or matter therein,
he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her
in connection therewith.
10.4 Standard of
Conduct
.
Except in a situation
governed by
Section 10.3
, any indemnification under
Section 10.1
or
Section 10.2
(unless ordered by a court)
shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth
in Section 1 or 2, as applicable, of this Article. Such determination shall be made (i) by a majority vote of directors acting
at a meeting at which a quorum consisting of directors who were not parties to such action, suit or proceeding is present, or
(ii) if such a quorum is not obtainable, or even if obtainable, a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (iii) by the stockholders. The determination required by clauses (i) and (ii) of this Section
4 may in either event be made by written consent of the majority required by each clause.
10.5 Expenses.
Expenses (including
attorneys’ fees) of each director and officer hereunder indemnified actually and reasonably incurred in defending any civil,
criminal, administrative or investigative action, suit or proceeding or threat thereof shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay
such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized
in this Article X. Such expenses (including attorneys’ fees) incurred by employees and agents may be so paid upon the receipt
of the aforesaid undertaking and upon such terms and conditions, if any, as the Board deems appropriate.
10.6 Nonexclusivity.
The indemnification
and advancement of expenses provided by, or granted pursuant to, other Sections of this Article X shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of expenses may now or hereafter be entitled under any
law, by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official
capacity and as to action in another capacity while holding such office.
10.7
Insurance.
The Corporation may
purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation,
or is or was serving at the request of the Corporation as a director, officer, employee or agent of another Corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or
her against such liability under the provisions of Delaware Law.
10.8 Definitions
For purposes of this
Article X, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence
had continued, would have had the power and authority to indemnify any or all of its directors, officers, employees and agents,
so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation in any other capacity for another corporation, partnership, joint venture, trust
or other enterprise, shall stand in the same position under the provisions of this Article X with respect to the resulting or
surviving corporation as such person would have had with respect to such constituent corporation if its separate existence had
continued.
For purposes of this
Article X, references to “other capacities” shall include serving as a trustee or agent for any employee benefit plan;
references to “other enterprises” shall include employee benefit plans; references to “fines” shall include
any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request
of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes
duties on, or involves services by such director, officer, employee, or agent with respect to an employee benefit plan, its participants,
or beneficiaries. A person who acted in good faith and in a manner he or she reasonably believed to be in the best interests of
the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to
the best interests of the Corporation” as referred to in this Article X.
10.9 Continuation
.
The indemnification and advancement of expenses provided by, or granted pursuant to, Delaware Law, unless otherwise provided when
authorized or ratified, continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such person.
10.10 Severability
.
If this Article X or any provision hereof shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable
for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Article X (including,
without limitation, each section and subsection of this Article X containing any such provision held to be invalid, illegal or
unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired hereby,
and (b) to the fullest extent possible and permitted by law, the provisions of this Article X (including, without limitation,
each portion of any section or subsection of this Article X containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give maximum effect to the intent manifested by the provision held to be invalid, illegal or unenforceable.
10.11 Amendment
.
The right to indemnification conferred by this Article X shall be deemed to be a contract between the Corporation and each person
referred therein until amended or repealed, and any repeal or amendment of this Article X by the stockholders of the Corporation
or by changes in law, or the adoption of any other provision of these Bylaws inconsistent with this Article X will, unless otherwise
required by law, be prospective only (except to the extent such amendment or change in law permits this corporation to provide
broader indemnification rights than said law permitted this corporation to provide prior to such amendment) and shall not apply
to or have any effect on the right to indemnification or to advancement of expenses of any person with respect to any liability
or alleged liability with respect to such person for or with respect to any act or omission of such person occurring prior to
such repeal or amendment.
