UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
 
FORM 8-K
____________________
 
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
 
Date of Report (Date of Earliest Event Reported): July 10, 2014
____________________
 
FINJAN HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
 ____________________
 
Delaware
000-33304
20-4075963
(State or other jurisdiction
of incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
     
122 East 42nd Street, Suite 1512, New York, New York
10168
(Address of principal executive offices)
(Zip Code)

Registrant’s telephone number, including area code: (646) 755-3320
 
 
(Former name or former address, if changed since last report)
____________________

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
 
o  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 
 
 
 
Item 5.02.  Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
 
On July 10, 2014, the Board of Directors (the “Board”) of Finjan Holdings, Inc. (the “Company”) appointed Daniel Chinn as Executive Chairman of the Board of Directors.  In light of Mr. Chinn’s appointment as Executive Chairman, the Nominating and Corporate Governance Committee, which was previously comprised of Daniel Chinn and Michael Eisenberg, was reconstituted to consist of Michael Eisenberg and Alex Rogers, each of whom are independent under applicable NASDAQ rules.
 
On July 10, 2014, the Company’s President, Philip Hartstein, was appointed President and Chief Executive Officer of the Company, and the Company’s Chief Financial Officer, Shimon Steinmetz, was appointed Chief Financial Officer and Treasurer .
 
See the Company’s Definitive Proxy Statement filed on June 11, 2014 for biographical and other information on Messrs. Chinn, Hartstein and Steinmetz.
 
Item 5.03.  Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
 
Amended and Restated Charter
 
At the Company's annual meeting of stockholders (the “Annual Meeting”) held on July 10, 2014, the Company’s stockholders approved each of the amendments (the “Charter Amendments”) to the Company’s certificate of incorporation described in Proposals 4A through 4I of the Company’s Definitive Proxy Statement filed with the Securities and Exchange Commission on June 11, 2014.  The Charter Amendments became effective on July 10, 2014 upon the filing with the Secretary of State of the State of Delaware of the Amended and Restated Certificate of Incorporation (the “A&R Charter”) of the Company, a copy of which is attached as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
 
Amended and Restated Bylaws
 
Following the Annual Meeting, on July 10, 2014, the Board  adopted the Amended and Restated Bylaws (the “A&R Bylaws”) of the Company, effective as of July 10, 2014.  The A&R Bylaws are intended primarily to conform the Company’s bylaws to the A&R Charter,  update the Company’s bylaws to reflect statutory and case law developments since the previous bylaws (the “Prior Bylaws”) were adopted and to include provisions commonly found in the bylaws of public Delaware corporations similar to the Company.   Set forth below is a summary of the material amendments to the provisions of the Prior Bylaws that are contained in the A&R Bylaws.

Advance Notice Provisions

The A&R Bylaws include advance notice procedures and requirements for stockholder proposals to be brought before an annual meeting of the stockholders, including the nomination of directors.
 
Section 2.5 of the A&R Bylaws provides that, at an annual meeting of the stockholders, only such business (other than nominations for directors) will be conducted as shall have been brought before the meeting (i) pursuant to the Company’s proxy materials, (ii) by or at the direction of the Board, or (iii) by a stockholder of the Company who is a stockholder of record at the time requisite advance notice is given, who is entitled to vote at the meeting and who complies with the notice procedures and other requirements set forth in Section 2.5 of the A&R Bylaws.  Among other things, those procedures require the stockholder to deliver written notice to the Company’s secretary not less than ninety nor more than one hundred twenty days prior to the first anniversary of the preceding year’s annual meeting of stockholders (the “Anniversary”), except that, if the date of the annual meeting is advanced more than thirty days prior to, or delayed by more than sixty days after, the Anniversary or if no annual meeting of stockholders was held in the previous year, notice by the stockholder to be timely would have to be delivered not later than the later of (x) ten (10) days after the Corporation has publicly disclosed the date of the meeting in the manner provided in the A&R Bylaws, and (y) ninety days prior to the date of the annual meeting.  The requisite content of such notice is set forth in Section 2.5 of the A&R Bylaws.
 
Section 2.6 of the A&R Bylaws provides that only persons nominated in accordance with the applicable procedures will be eligible to be elected by the Company’s stockholders to serve as directors of the Company.  Section 2.6 of the A&R Bylaws further provides that nominations of persons for election to the Board at an annual meeting of stockholders may be made (i) by or at the direction of the Board or (ii) by any stockholder of the Company who is a stockholder of record at the time the requisite notice is given, who is entitled to vote in the election of directors at the meeting and who complies with the notice procedures and other requirements set forth in the A&R Bylaws.  Among other things, those procedures would require the stockholder to deliver requisite notice to the secretary of the Company within the timeframes described above, except that,  in the event that the number of directors to be elected to the Board is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board made by the Company at least one hundred days prior to the Anniversary, a stockholder’s notice will also be considered timely, but only with respect to nominees for any new positions created by such increase, if it is delivered not later than the tenth day following the day on which such public announcement is first made by the Company.   The requisite content of such notice is set forth in Section 2.6 of the A&R Bylaws.
 
 
 
 
 
The Prior Bylaws did not contain advance notice procedures for the Company’s stockholders to nominate directors or propose other business to be brought before a meeting of stockholders.
 
Action by Written Consent

Consistent with the Charter Amendments approved at the Annual Meeting, Section 2.7 of the A&R Bylaws provides that stockholder action may only be taken at a duly called annual or special meeting and may not be taken by written consent.  The Prior Bylaws permitted stockholders to take any action required or permitted to be taken at a meeting of stockholders, by written consent, without a meeting, without prior notice and without a vote.
 
Vacancies on the Board
 
Section 3.4 of the A&R Bylaws clarifies the term of directors elected to fill vacancies on the Board.  Under that provision, a director elected to fill a vacancy will be elected for the unexpired term of his or her predecessor in office, and a director elected to fill a position resulting from any increase in the authorized number of directors will hold office until the next election of the class for which such director is chosen (or, if directors are not at that time divided into classes, until the next annual meeting of stockholders to be held in the first year following the year of his or her election), subject in each case to the election and qualification of his or her successor or his or her earlier death, resignation or removal.  The Prior Bylaws provided that any directors chosen to fill a vacancy on the Board would hold office until the next annual election and until their successors are duly elected and qualify.
 
Indemnification

The Prior Bylaws provided for indemnification of officers and directors to the extent authorized by the DGCL, and sets forth procedures relating to the Company’s  indemnification obligations, to the extent indemnification is sought pursuant to the Prior Bylaws.  Article 8 of the A&R Bylaws, among other things:
 
 
·
Clarifies the standards of conduct that must be met for a director, officer or other employee entitled to indemnification (a “Covered Person”) to be entitled to indemnification, and provides that the determination of whether the applicable standard has been met will be made by a majority of disinterested directors, a committee of disinterested directors, or if there are no such disinterested directors, by the stockholders;
 
 
·
Expressly authorizes the Company to obtain insurance against with respect to liabilities for which directors and officers may be entitled to indemnification;
 
 
·
Clarifies that the indemnification provisions set forth in the A&R Bylaws will not be exclusive of any other rights of a Covered Person with respect to actions taken by the Covered Person in his or her official capacity or otherwise; and
 
 
·
Includes technical amendments designed to clarify the procedures with respect to claims for indemnification and indemnification payments.
 
Bylaw Amendments

Article XI of the A&R Bylaws provides that the bylaws of the Company may be altered, amended or repealed, and new bylaws may be adopted, only in the manner provided in the Company’s certificate of incorporation (which, in accordance with the Charter Amendments adopted at the Annual Meeting, provides that bylaws may only be amended, modified, repealed or adopted by the Board or by holders of 66 2/3% of the voting power of the Company’s outstanding capital stock entitled to vote in the election of directors).  The Prior Bylaws provided that bylaws could be altered, amended, repealed or adopted by the stockholders or by the Board, when such power is conferred upon the Board of Directors by the certificate of incorporation, at any regular meeting of the stockholders or of the Board or at any special meeting of the stockholders or of the Board.
 
 
 
 
 
Technical and Procedural Amendments
 
The A&R Bylaws include several technical and procedural amendments intended to clarify provisions of the Prior Bylaws, reflect statutory and case law developments since the Prior Bylaws were adopted and to include additional provisions commonly found in the bylaws of public Delaware corporations similar to the Company.  The technical and procedural amendments include the following:
 
 
·
Amending and restating Article I of the Prior Bylaws in its entirety as set forth in Article I of the A&R Bylaws, among other things to distinguish between the Company’s registered office in Delaware and other offices;
 
 
·
Amending and restating Article II of the Prior Bylaws in its entirety as set forth in Article II of the A&R Bylaws, among other things to (i) designate the Company’s principal business office as the default location of the Company’s meetings of stockholders if no other location is designated and permit electronic or telephonic meetings of stockholders; (ii) provide that special meetings may only be called in the manner provided in the Company’s certificate of incorporation, for the purposes set forth in a notice delivered in accordance with the Company’s certificate of incorporation; (iii) adding  quorum requirements in the event multiple classes of stock are outstanding; (iv) permitting the chairperson of any meeting at which a quorum is not present (in addition to the holders of a majority of the Company’s capital stock present at such meeting) to adjourn the meeting; (v) expressly providing that directors shall be elected by a plurality (in lieu of existing provisions referring to provisions of the DGCL); (vi) clarifying notice requirements and procedures for fixing the record date for annual and special meetings in a manner consistent with the DGCL; and (vii) expressly providing for proxy voting, the appointment of an inspector of elections and authority of the Board to establish rules of conduct for any meeting of stockholders;
 
 
·
Amending and restating Articles III and IV of the Prior Bylaws in their entirety as set forth in Articles III and IV of the A&R Bylaws to provide updated descriptions of the general powers of the Board, the number and tenure of directors, procedural requirements for board meetings and action by written consent of the Board and the ability to appoint committees of the Board, in each case, in a manner consistent with the DGCL;
 
 
·
Amending and restating Article V of the Prior Bylaws as set forth in Article V of the A&R Bylaws to further specify the respective roles of various officers of the Company;
 
 
·
Amending and restating Article VI of the Prior Bylaws as set forth in Article VI of the A&R Bylaws to specify the requirements for stock certificates representing multiple classes of the capital stock of the Company and expressly providing for the appointment of a transfer agent;
 
 
·
Amending and restating Article VII of the Prior Bylaws as set forth in Article VII of the A&R Bylaws to permit electronic transmission of notices to stockholders, to the extent stockholders consent to such electronic transmission and to provide that attendance at any meeting will constitute waiver of notice of such meeting, unless the person attends the meeting for the express purpose of objecting to, and objects at the beginning of such meeting, to the transaction of any business because such meeting is not lawfully called or convened; and
 
 
·
Amending and restating Article VII of the Prior Bylaws as set forth in Article IX of the A&R Bylaws to provide updated provisions relating to dividends, checks, stock in other corporations, the Company’s corporate seal, the Board’s ability to rely on books and records of the Company, and the severability of unenforceable, illegal or invalid provisions.
 
 
 
 
 
The foregoing description if the A&R Bylaws is qualified in its entirety by the full text of the A&R Bylaws, a copy of which is filed as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated herein by reference.
 
Item 5.07.   Submission of Matters to a Vote of Security Holders .

The Company held the Annual Meeting on July 10, 2014.  At the Annual Meeting, fourteen proposals were submitted to, and approved by, the Company’s stockholders.  The proposals are described in more detail in the Company’s Definitive Proxy Statement for the Annual Meeting filed with the Securities and Exchange Commission on June 11, 2014.  The final voting results were as follows:

Proposal 1

The Company’s stockholders elected the following (i) Class 1 directors to serve two-year terms ending at the 2016 annual meeting of stockholders and until their respective successors are elected and qualified or until their earlier death, removal or resignation and (ii) Class 2 directors to serve three-year terms ending at the 2017 annual meeting of stockholders and until their respective successors are elected and qualified or until their earlier death, removal or resignation.  The voting results are set forth below.
 
 
For
Withheld
Broker Non-Vote
Eric Benhamou (Class 1)
16,506,896
1,863
1,317,686
Daniel Chinn
(Class 1)
16,185,369
323,390
1,317,686
Michael Southworth (Class 2)
16,504,102
4,657
1,317,686
Alex Rogers
(Class 2)
16,506,991
1,768
1,317,686
Glenn Rogers
(Class 2)
16,506,991
1,768
1,317,686
 
Proposal 2

The Company’s stockholders ratified the appointment of Marcum LLP as the Company's independent registered public accounting firm for the fiscal year ending December 31, 2014. The voting results are set forth below.

For
Against
Abstain
Broker Non-Vote
17,793,993
4,853
27,599
0

Proposal 3

The Company’s stockholders approved the Finjan Holdings, Inc. 2014 Incentive Compensation Plan.  The voting results are set forth below.

For
Against
Abstain
Broker Non-Vote
16,498,047
7,818
2,894
1,317,686

Proposals 4A-4I

The Company’s stockholders approved amendments to the Company’s current certificate of incorporation as set forth below.  The A&R Charter reflects these amendments.  The voting results are also set forth below.
 
 
 
 
 
 
A.
Approval of an amendment to decrease the number of authorized shares of common stock from 1 billion to 80 million;
 
For
Against
Abstain
Broker Non-Vote
17,720,584
39,540
66,321
0

 
B.
Approval of an amendment to provide that the Board consist of between three and fifteen directors and to clarify provisions related to our Board structure;

For
Against
Abstain
Broker Non-Vote
17,731,561
33,948
60,936
0

 
C.
Approval of an amendment to eliminate the ability of holders of our common stock to vote on amendments relating solely to preferred stock;

For
Against
Abstain
Broker Non-Vote
16,133,864
373,766
1,129
1,317,686

 
D.
Approval of an amendment to provide for supermajority voting for amendments to bylaws by stockholders;

For
Against
Abstain
Broker Non-Vote
16,179,463
328,190
1,106
1,317,686

 
E.
Approval of an amendment to provide for supermajority voting for certain amendments to the charter;

For
Against
Abstain
Broker Non-Vote
16,178,979
328,493
1,287
1,317,686

 
F.
Approval of an amendment to provide for supermajority voting to remove directors for cause;

For
Against
Abstain
Broker Non-Vote
16,179,282
327,367
2,110
1,317,686

 
G.
Approval of an amendment to permit stockholder action only at a duly called meeting and to prohibit action by written consent of stockholders;

For
Against
Abstain
Broker Non-Vote
16,497,526
8,821
2,412
1,317,686
 
 
H.
Approval of an amendment to provide that the Court of Chancery of the State of Delaware will be the exclusive forum for certain legal actions;
 
For
Against
Abstain
Broker Non-Vote
16,180,090
325,361
3,308
1,317,686

 
I.
Approval of an amendment to update provisions relating to indemnification and personal liability of directors;

For
Against
Abstain
Broker Non-Vote
17,708,598
57,016
60,831
0
 
 
 
 
 
Proposal 5
 
The Company's stockholders approved, on an advisory basis, the compensation paid to the Company's named executive officers.  The voting results are set forth below.
 
For
Against
Abstain
Broker Non-Vote
16,497,637
8,002
3,120
1,317,686

Proposal 6
 
The Company's stockholders approved, by an advisory vote, holding a stockholder advisory votes on executive compensation every three years.  The voting results are set forth below.

1-Year
2-Years
3-Years
Abstain
Broker Non-Vote
330,555
1,254
16,171,868
5,082
1,317,686
 
In accordance with its recommendation, as set forth in the Company’s 2014 Definitive Proxy Statement, and in light of the voting results with respect to the frequency of future advisory votes on executive compensation, the Board has determined that the Company will hold an advisory vote on the compensation of its named executive officers every three years until the next vote on the frequency of such advisory votes.  The Company is required to hold a vote on the frequency of such advisory votes on executive compensation at least once every six years.
 
Item 9.01.  Financial Statements and Exhibits

(d)
Exhibits.

Exhibit No.
 
Description
3.1
 
Amended and Restated Certificate of Incorporation of the Company, effective July 10, 2014
3.2
 
Amended and Restated Bylaws, adopted July 10, 2014
 
 
 
 
 
SIGNATURE
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
 
FINJAN HOLDINGS, INC.
     
Date:  July 11, 2014
By:
/s/ Shimon Steinmetz
   
Name: Shimon Steinmetz
   
Title: Chief Financial Officer
 
 
 
 
 
EXHIBIT INDEX
 
Exhibit No.
 
Description
3.1
 
Amended and Restated Certificate of Incorporation of the Company, effective July 10, 2014
3.2
 
Amended and Restated Bylaws, adopted July 10, 2014
 
 

AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FINJAN HOLDINGS, INC.

Finjan Holdings, Inc. (the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware, as amended (the “DGCL”), hereby certifies as follows:

FIRST :  The name of the Corporation is Finjan Holdings, Inc.  The Corporation was incorporated under the name “Converted Organics Inc.”, pursuant to the DGCL, by filing its original Certificate of Incorporation with the Secretary of State of the State of Delaware on January 4, 2006.

SECOND :  The Corporation filed a Certificate of Ownership and Merger with the Secretary of State of the State of Delaware on June 3, 2013, to effect the change of the name of the Corporation from “Converted Organics Inc.” to “Finjan Holdings, Inc.”.

THIRD :  This Amended and Restated Certificate of Incorporation of the Corporation (this “Certificate of Incorporation”) was duly approved by the board of directors of the Corporation (the “Board of Directors”) and was duly approved by the holders of the requisite number of shares of the Corporation in accordance with Sections 242 and 245 of the DGCL.  The number of shares voting in favor of such amendment and restatement equaled or exceeded the vote required.

FOURTH :  The Certificate of Incorporation is hereby amended and restated in its entirety to read as follows:

ARTICLE I

Name

The name of the Corporation is Finjan Holdings, Inc.

ARTICLE II

Registered Office

  The Corporation’s registered office in the State of Delaware is located at 160 Greentree Drive, Suite 101, Dover, Delaware 19904, in the county of Kent. The name of the Corporation’s registered agent at such address is National Registered Agents, Inc.  The registered office and/or registered agent of the Corporation may be changed from time to time by resolution of the Board of Directors.
 
 
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ARTICLE III

Purpose

  The nature of the business to be conducted and promoted by, and the purpose of, the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

ARTICLE IV

Capital Stock

A.            Authorized Capital Stock .  The total number of shares of capital stock which the Corporation shall have authority to issue is Ninety Million (90,000,000) shares, consisting of: (i) Eighty Million (80,000,000) shares of Common Stock, par value $0.0001 per share and (ii) Ten Million (10,000,000) shares of Preferred Stock, par value $0.0001 per share.

B.            Designations and Rights .  The designations and the powers, preferences and relative, participating, optional or other rights of the capital stock and the qualifications, limitations or restrictions thereof are as follows:

1.       Common Stock .

a.       Voting Rights .  Except as otherwise provided by law, each share of Common Stock shall entitle the holder thereof to one vote in any matter which is submitted to a vote of stockholders of the Corporation, provided, however, that except as otherwise required by law, holders of the Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of Incorporation (including a certificate of designations relating to any series of the Preferred Stock) that relates solely to the terms of one or more outstanding series of the Preferred Stock if the holders of such affected series are entitled, either voting separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including a certificate of designations relating to any series of the Preferred Stock) or pursuant to the DGCL.

b.       Dividends .  Subject to the express terms of the Preferred Stock outstanding from time to time, the holders of Common Stock shall be entitled to receive dividends or distributions (payable in cash, other property or capital stock of the Corporation) when, as and if declared by the Board of Directors from time to time out of any source at the time lawfully available for the payment of dividends, and all such dividends shall be shared equally by the holders of Common Stock on a per share basis. Any dividends on the Common Stock will not be cumulative.

c.       Liquidation .  In the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, and subject to the rights of the holders of Preferred Stock in respect thereof, the holders of shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by them.
 
 
2
 

 
2.       Preferred Stock .  The Preferred Stock may be issued from time to time in one or more series. The Board of Directors is hereby authorized to fix the rights, preferences, privileges, limitations, designations, title and number of shares of each series of Preferred Stock and each such series of Preferred Stock shall have such voting powers, full or limited, or no voting powers, and such preferences and relative, participating, optional or other special rights, and such qualifications, limitations or restrictions thereof, as shall be stated and expressed in the resolution or resolutions providing for the issuance of such series of Preferred Stock as may be adopted from time to time by the Board of Directors prior to the issuance of any shares thereof pursuant to the authority hereby expressly vested in it. The Board of Directors is further authorized to increase or decrease (but not below the number of shares outstanding) the number of shares of any series of Preferred Stock subsequent to the issuance of shares of that series. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status of which they had prior to the adoption of the resolution originally fixing the number of shares of such series. Except as provided in the resolution or resolutions of the Board of Directors creating any series of Preferred Stock or as otherwise provided herein, the shares of Common Stock shall have the exclusive right to vote for the election and removal of directors and for all other purposes.

ARTICLE V

Board of Directors
 
A.            Powers of the Board of Directors .  The business and affairs of the Corporation shall be managed by, or under the direction of, the Board of Directors.

B.            Number of Directors .  The Board of Directors shall consist of not less than three (3) nor more than fifteen (15) directors.  The exact number of directors shall be determined from time to time by resolution adopted by the vote of a majority of the directors in office at the time of adoption of such resolution.

C.             Classified Board .   The directors shall be divided into three classes, Class 1, Class 2 and Class 3, with each class having as equal a number of members as reasonably possible.

D.             Term and Removal .   The initial term of office following the effectiveness of this Article V, Section D of the Class 1, Class 2 and Class 3 directors shall expire at the annual meeting of stockholders in 2016, 2017 and 2015, respectively. Beginning in 2015, at each annual meeting of stockholders, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term.  If the number of directors is changed, any increase or decrease shall be apportioned among the classes by the Board of Directors so as to maintain the number of directors in each class as nearly equal as is reasonably possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class.  In no case will a decrease in the number of directors shorten the term of any incumbent director, even though such decrease may result in an inequality of the classes until the expiration of such term.  A director shall hold office until the annual meeting of stockholders in the year in which his or her term expires and until his or her successor shall be elected and qualified, subject, however, to prior death, resignation, retirement or removal from office. Directors may be removed only for cause by the vote of the holders of at least sixty-six and two-thirds percent (66 2 / 3 %) of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, at a meeting of the stockholders called for that purpose.
 
 
3
 

 
E.            Vacancies . Vacancies on the Board of Directors and newly-created directorships shall be filled exclusively by vote of a majority of the directors then in office, even if less than a quorum, or by a sole remaining director, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders and except as otherwise provided by law.

ARTICLE VI

Stockholder Action

A.            Election of Directors .  Elections of Directors need not be by written ballot unless the bylaws of the Corporation (the “Bylaws”) shall so provide.

B.            Meetings of Stockholders .  Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide.

C.            Written Consent .  Any corporate action required or permitted to be taken by the stockholders of the Corporation shall be effected only at a duly called annual or special meeting of stockholders of the Corporation and shall not be effected by consent in writing of the stockholders.

D.            Special Meetings .  Special meetings of the stockholders of the Corporation may be called only by (i) the Chairman of the Board of Directors, (ii) the Chief Executive Officer, or if no Chief Executive Officer shall then be serving, the President of the Corporation or (iii) the Board of Directors pursuant to a resolution approved by a majority of the Board of Directors.

E.            Advance Notice .  Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner and to the extent provided in the Bylaws.

ARTICLE VII

Amendment of Bylaws

A.            Amendment of Bylaws .  In furtherance and not in limitation of the power conferred by statute, the Board of Directors is expressly authorized to make, alter, amend or repeal the Bylaws.  The Bylaws may be altered, amended, or repealed, or new Bylaws may be adopted, only by the Board of Directors in accordance with the preceding sentence or by the vote of the holders of at least sixty-six and two-thirds percent (66 2 / 3 %) of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors at an annual or special meeting of stockholders, voting together as a single class, provided that, if such alteration, amendment, repeal or adoption of new Bylaws is effected at a duly called special meeting, notice of such alteration, amendment, repeal or adoption of new Bylaws is contained in the notice of such special meeting.
 
 
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   ARTICLE VIII

Amendment of Certificate of Incorporation

  The Board of Directors   may adopt a resolution proposing to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the vote of the holders of at least sixty-six and two-thirds percent (66 2 / 3 %) of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors at an annual or special meeting of stockholders, voting together as a single class, shall be required to amend, alter or repeal, or to adopt any provision inconsistent with, ARTICLE V, ARTICLE VI, ARTICLE VII, ARTICLE VIII, ARTICLE IX or ARTICLE X of this Certificate of Incorporation.

ARTICLE IX

Indemnification; Limitation on Liability of Directors

A.            Indemnification .
 
1.            Indemnification of Directors and Officers .  The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL, each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, limited liability company, joint venture, trust or other enterprise.   The right to indemnification conferred in this ARTICLE IX shall also include the right to have the Corporation pay directly or cause to be paid directly the expenses incurred in connection with any such proceeding in advance of its final disposition to the fullest extent authorized by the DGCL.  The right to indemnification conferred in this ARTICLE IX shall be a contract right.   To the fullest extent permitted by applicable law, this Corporation is also authorized to provide indemnification of and advancement of expenses to such agents (and any other persons to which Delaware law permits this Corporation to provide indemnification) through Bylaw provisions, agreement with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the DGCL (statutory or non-statutory), with respect to actions for breach of duty to this Corporation, its stockholders and others.
 
 
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2.            Indemnification of Employees and Agents .  The Corporation may, by action of the Board of Directors, indemnify the employees and agents of the Corporation to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by the DGCL.
 
3.            Insurance .  The Corporation shall have the right, power and authority to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of this ARTICLE IX and the DGCL.
 
4.            Non-Exclusivity of Rights; Continuation of Rights .  The rights and authority conferred in this ARTICLE IX shall not be exclusive of any other right that any person may otherwise have or hereafter acquire.  Neither the amendment nor repeal of this ARTICLE IX, nor the adoption of any provision of this Certificate of Incorporation or the Bylaws, nor, to the fullest extent permitted by the DGCL, any modification of law, shall eliminate or reduce the effect of this ARTICLE IX in respect of any acts or omissions occurring prior to such amendment, repeal, adoption or modification.
 
B.            Elimination of Certain Liability of Directors .  No director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, as the same exists or hereafter may be amended, or (iv) for any transaction from which the director derived an improper personal benefit.  If the DGCL is amended to authorize the further elimination or limitation of liability of directors, then the liability of a director of the Corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended DGCL.
 
C.            Repeal or Modification .  Any repeal or modification by the stockholders of the Corporation of any of the foregoing provisions of this ARTICLE IX shall be prospective only and shall not adversely affect any right or protection of any director, officer, employee or agent or other person existing at the time of, or increase the liability of any director of the Corporation with respect to any acts or omissions of such director, officer, employee or agent occurring prior to such repeal or modification.
 
 
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ARTICLE X

Exclusive Forum

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, another state court located within the State of Delaware or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware) shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the stockholders of the Corporation, (iii) any action asserting a claim against the Corporation arising pursuant to any provision of the DGCL or the Certificate of Incorporation or the Bylaws, (iv) any action to interpret, apply, enforce or determine the validity of this Certificate of Incorporation or the Bylaws or (v) any action asserting a claim against the Corporation governed by the internal affairs doctrine, in each case excluding actions in which the Court of Chancery of the State of Delaware concludes that an indispensable party is not subject to the jurisdiction of the Delaware courts and can be subject to the jurisdiction of another court within the United States. Any person or entity purchasing or otherwise acquiring any interest in the shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this ARTICLE X.
 
 
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by its President on July 10, 2014.
 
 
FINJAN HOLDINGS, INC.

By:  /s/ Philip Hartstein
Name: Philip Hartstein
Its: President
 
 
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AMENDED AND RESTATED BYLAWS
OF
FINJAN HOLDINGS, INC.

(Effective as of July 10, 2014)

ARTICLE I
OFFICES

Section 1.1 .                       Registered Office . The registered office of Finjan Holdings, Inc. (the “Corporation”) shall be fixed as provided in the Amended and Restated Certificate of Incorporation of the Corporation (as the same may be amended or restated from time to time, the “Certificate of Incorporation”).

Section 1.2 .                       Other Offices .  The Corporation may also have offices at such other places both within or without the State of Delaware as the board of directors of the Corporation (the “Board of Directors”) may from time to time determine or the business of the Corporation may require.

ARTICLE II
MEETINGS OF STOCKHOLDERS

Section 2.1 .                       Place of Meetings .  The Board of Directors may designate any place, either within or without the State of Delaware, as the place of meeting for any annual meeting or special meeting of stockholders of the Corporation.  If no such place is designated by the Board of Directors, the place of meeting will be the principal business office of the Corporation.  Notwithstanding the foregoing, the Board of Directors may, in its sole discretion, determine that the meeting shall not be held in any place, but may instead be held solely by means of electronic or telephonic communication, upon such guidelines as the Board of Directors shall determine, provided that such guidelines are consistent with Section 211 of the General Corporation Law of the State of Delaware, as the same may be from time to time amended (the “DGCL”).

Section 2.2 .                       Annual Meeting .  Annual meetings of stockholders shall be held at such time and date as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which stockholders shall elect directors to hold office for the term provided in the Certificate of Incorporation and conduct such other business as shall have been properly brought before the meeting.

Section 2.3 .                       Special Meetings of Stockholders .  Special meetings of the stockholders of the Corporation may be called only in the manner provided in the Certificate of Incorporation.  The business transacted at any special meeting of the stockholders shall be limited to the purposes stated in the notice for the meeting transmitted to stockholders, which only shall be the purposes for which the meeting has been called in accordance with the Certificate of Incorporation.
 
 
 
 

 
Section 2.4 .                       Notice of Stockholder Meetings .

(a)           Except as otherwise required by the DGCL, notice of any meeting of stockholders, stating the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, 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), and if such notice is being delivered in connection with a special meeting, the purpose or purposes for which the meeting is called, shall be given to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting not less than ten (10) nor more than sixty (60) days before the date of the meeting.  Notice of any such meeting shall be given in writing or by facsimile, electronic mail or other means of electronic transmission.  If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder at the stockholder’s address as it appears on the records of the Corporation.  If notice is given by facsimile transmission, notice is deemed to be given when directed to a number at which the stockholder has consented to receive notice.  If notice is given by electronic mail, notice is deemed to be given when directed to an electronic mail address at which the stockholder has consented to receive notice, or if notice is given by posting on an electronic network together with separate notice to the stockholder of such specific posting, notice is deemed to be given upon the later of (a) such posting and (b) the giving of such separate notice.  If notice is given by any other means of electronic transmission, notice is deemed to be given when directed to the stockholder.

(b)           Notice given to stockholders by electronic mail, facsimile or other electronic transmission shall be effective, provided that notice is given by a form of electronic mail, facsimile or other electronic transmission consented to by the stockholder to whom the notice is given.  Any such consent is revocable by the stockholder by written notice to the Corporation.  Any such consent shall be deemed to be revoked if (i) the Corporation is unable to deliver two consecutive notices to such stockholder by electronic mail, facsimile or electronic transmission, and (ii) such inability becomes known to the Secretary, any Assistant Secretary of the Corporation or the transfer agent for the Corporation or such other person responsible for giving notice; provided, however, that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
 
 
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Section 2.5 .                       Annual Meeting Agenda Items .  At an annual meeting of the stockholders, only such business (other than nominations for directors, which shall be governed by Section 2.6) shall be conducted as shall have been brought before the meeting (i) pursuant to the Corporation’s proxy materials, (ii) by or at the direction of the Board of Directors, or (iii) by any stockholder of the Corporation who is a stockholder of record at the time of the giving of notice provided for herein, who is entitled to vote at the meeting and who complies with the notice procedures and other requirements set forth below in this Section 2.5 in the time herein provided.  For the avoidance of doubt, the foregoing clause (iii) shall be the exclusive means for a stockholder to propose business (other than business included in the Corporation’s proxy materials pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (including the rules and regulations promulgated thereunder, the “Exchange Act”)) at an annual meeting of stockholders.  For business (other than nominations for directors, which shall be governed by Section 2.6) to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) above, (a) such business must be a proper matter for stockholder action under Delaware law and (b) the stockholder must deliver written notice to, or mail such written notice so that it is received by, the Secretary of the Corporation, at the principal executive offices of the Corporation, not less than ninety (90) nor more than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting of stockholders (the “Anniversary”), except that if the date of the annual meeting is advanced more than thirty (30) days prior to, or delayed by more than sixty (60) days after, the Anniversary or if no annual meeting of stockholders was held in the previous year, notice by the stockholder to be timely must be so delivered not later than the later of (x) ten (10) days after the Corporation has “publicly disclosed” the date of the meeting in the manner provided below, and (y) ninety (90) days prior to the date of the annual meeting.  The stockholder’s notice to the Secretary shall set forth as to each matter the stockholder proposes to bring before the annual meeting (A) a brief description of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting, (B) the name and address, as they appear on the Corporation’s books, of the stockholder proposing such business and of each Stockholder Associated Person (as defined below) of such stockholder, (C) any material interest of the stockholder or any Stockholder Associated Person of such stockholder in such business, (D)(1) the class and number of shares of the Corporation that are beneficially owned and held of record by the stockholder and each Stockholder Associated Person of such stockholder, (2) all options, warrants, convertible securities, stock appreciation rights or similar rights with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of capital stock of the Corporation or with a value derived in whole or in part from the value of any class or series of capital stock of the Corporation, whether or not such instruments or rights are subject to settlement in the underlying class or series of capital stock of the Corporation or otherwise (a “Derivative Instrument”), directly or indirectly owned beneficially by such stockholder and by each Stockholder Associated Person of such stockholder and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of capital stock of the Corporation, (3) any proxy, contract, arrangement, understanding or relationship pursuant to which such stockholder or any Stockholder Associated Person of such stockholder has a right to vote any shares of capital stock or any other security of the Corporation, (4) any short interest in any security of the Corporation (for purposes of this provision, a Person (as defined below) shall be deemed to have a short interest in a security if such Person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security) of such stockholder or any Stockholder Associated Person of such stockholder, (5) any rights to dividends on the shares of the Corporation owned beneficially by such stockholder or any Stockholder Associated Person of such stockholder that are separated or separable from the underlying shares of the Corporation, (6) any proportionate interest in shares of capital stock of the Corporation or Derivative Instruments held, directly or indirectly, by (I) a partnership in which such stockholder or any Stockholder Associated Person of such stockholder is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, (II) a limited liability company in which such stockholder or any Stockholder Associated Person of such stockholder is a manager or managing member or, directly or indirectly, beneficially owns an interest in a manager or managing member or (III) a corporation in which such stockholder or any Stockholder Associated Person of such stockholder is a director or executive officer, and (7) any performance-related fees (other than an asset-based fee) that such stockholder or any Stockholder Associated Person of such stockholder is entitled to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, including, without limitation, any interests referred to in this clause (D) held by members of such stockholder’s immediate family sharing the same household as such stockholder or any immediate family members of any Stockholder Associated Person of such stockholder sharing the same household as such Stockholder Associated Person, (E) a representation as to whether such stockholder or any Stockholder Associated Person intends, or is part of a group that intends, to deliver a proxy statement and form of proxy to holders of the number of voting shares required to carry the proposal (the information required by this clause (E), together with the information required by clauses (B) through (D) hereof, the “Stockholder Proponent Information”), (F) a representation that such stockholder is a stockholder of record of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the annual meeting to bring such proposal before the meeting and (G) any other information related to such stockholder or any Stockholder Associated Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies or consents (even if a solicitation is not involved) by such stockholder or Stockholder Associated Person in support of the proposal to be brought before the meeting pursuant to Section 14A of the Exchange Act and the rules and regulations thereunder.  A stockholder providing a stockholder’s notice pursuant to this Section 2.5 shall, not later than five (5) days after the record date for determination of stockholders entitled to vote at the meeting (or, if such record date for determination of stockholders entitled to vote is five (5) or fewer days prior to the meeting, not later than the earlier of two (2) days after such record date and the commencement of the meeting), supplement such notice to disclose the information required by clauses (B) through (G) above as of such record date, and shall promptly furnish updates and supplements to such notice to the Secretary of the Corporation from time to time so that the information provided or required to be provided in such notice continues to be true and correct through the date of the meeting or any adjournment or postponement thereof. At an annual meeting, the presiding officer shall, if the facts warrant, determine and declare to the meeting that such business was not properly brought before the meeting in accordance with the provisions of this Section 2.5, and if such officer should so determine, such officer shall so declare to the meeting, and any such business not properly brought before the meeting shall not be transacted.  Whether or not the foregoing procedures are followed, no matter that is not a proper matter for stockholder consideration shall be brought before the meeting.  For purposes of these Bylaws, “publicly disclosed” or “public disclosure” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press, PR Newswire, Business Wire or a comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission; a “Stockholder Associated Person” of any stockholder shall mean (1) any Person controlling, directly or indirectly, or acting in concert with, such stockholder, (2) any beneficial owner of shares of capital stock of the Corporation owned of record or beneficially by such stockholder and (3) any Person controlling, controlled by or under common control with a Person or beneficial owner described in (1) or (2); and a “Person” shall mean an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization or a government, or any department or agency thereof, or any other legal entity.
 
 
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Only such business (other than nominations for directors, which shall be governed by Section 2.6) shall be conducted at an annual meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.5.  A stockholder who complies with the requirements of this Section 2.5 with respect to any business proposed to be brought before an annual meeting (other than nominations for directors, which shall be governed by Section 2.6) shall also comply with all applicable requirements of the Exchange Act.  Nothing in this Section 2.5 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.  Nothing in this Section 2.5 shall obligate, or be deemed to obligate, the Corporation to include in its proxy statement any proposal of any stockholder of the Corporation.

Section 2.6 .                       Director Nominations .  Only persons nominated in accordance with the procedures set forth in this Section 2.6 shall be eligible to be elected by the stockholders of the Corporation to serve as directors of the Corporation.  Nominations of persons for election to the Board of Directors at an annual meeting of stockholders may be made (i) by or at the direction of the Board of Directors or (ii) by any stockholder of the Corporation who is a stockholder of record at the time of the giving of notice provided for herein, who is entitled to vote in the election of directors at the meeting and who complies with the notice procedures and other requirements set forth below in this Section 2.6 in the time herein provided.
 
 
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In order to be timely, a stockholder’s notice shall be delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation not less than ninety (90) nor more than one hundred twenty (120) days prior to the Anniversary; provided, however, that if the date of the annual meeting is advanced more than thirty (30) days prior to, or delayed by more than sixty (60) days after, the Anniversary or if no annual meeting of stockholders was held in the previous year, notice by the stockholder to be timely must be so delivered not later than the later of (a) ten (10) days after the Corporation has “publicly disclosed” the date of the annual meeting in the manner provided in Section 2.5, and (b) ninety (90) days prior to the date of the annual meeting; and provided, further, however, that, in the event that the number of directors to be elected to the Board of Directors is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board of Directors made by the Corporation at least one hundred (100) days prior to the Anniversary, a stockholder’s notice required by these Bylaws shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered not later than the tenth (10 th ) day following the day on which such public announcement is first made by the Corporation.  Any stockholder’s notice pursuant to this Section 2.6 shall set forth (x) as to each person whom the stockholder proposes to nominate for election or re-election as a director, (A) all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Section 14A of the Exchange Act and the rules and regulations thereunder (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), (B) any agreement, arrangement or understanding with, or whether such person has given, or currently intends to give, any commitment or assurance to, any Person as to how such person, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) (and, if so, a description of such Voting Commitment, including as to any manner in which such Voting Commitment could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation, with such person’s fiduciary duties under the DGCL), and (C) whether such person is or currently intends to become a party to any agreement, arrangement or understanding with any Person other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director (and, if so, a description of such agreement, arrangement or understanding); (y) as to the stockholder giving notice and each person whom the stockholder proposes to nominate for election or re-election as a director, the Stockholder Proponent Information; and (z) as to the stockholder giving notice, (A) a representation that such stockholder is a stockholder of record of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the annual meeting to nominate the persons named in its notice and (B) any other information related to such stockholder or any Stockholder Associated Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies or consents for a contested election of directors (even if an election contest or proxy solicitation is not involved), or otherwise required, pursuant to Section 14A of the Exchange Act and the rules and regulations thereunder.  At the request of the Board of Directors, any person nominated by any stockholder of the Corporation for election as a director shall furnish (1) a completed director and officer questionnaire with respect to the background and qualifications of such person, substantially in the form provided to and requested to be completed by the then current members of the Board of Directors, and (2) such nominee’s consent to the Corporation’s engaging in a background check of such nominee (including through a third party investigation firm), and information reasonably necessary to complete such a background check, in a manner consistent with background checks customarily engaged in by the Corporation for prospective new members of the Board of Directors.  A stockholder providing a stockholder’s notice pursuant to this Section 2.6 shall, not later than five (5) days after the record date for determination of stockholders entitled to vote at the meeting (or, if such record date for determination of stockholders entitled to vote is five (5) or fewer days prior to the meeting, not later than the earlier of two (2) days after such record date and the commencement of the meeting), supplement such notice to disclose the information required by clauses (y) and (z) above as of such record date, and shall promptly furnish updates and supplements to such notice to the Secretary of the Corporation from time to time so that the information provided or required to be provided in such notice continues to be true and correct through the date of the meeting or any adjournment or postponement thereof.  At the request of the Board of Directors, any person nominated by the Board of Directors for election as a director shall furnish to the Secretary of the Corporation that information required to be set forth in a stockholder’s notice of nomination which pertains to the nominee. The presiding officer shall, if the facts so warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by these Bylaws, and if such officer should so determine, such officer shall so declare to the meeting and the defective nomination shall be disregarded.
 
 
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A stockholder who complies with the requirements of this Section 2.6 with respect to nominating a person for election to the Board of Directors shall also comply with any applicable requirements of the Exchange Act and the rules and regulations thereunder.  Nothing in this Section 2.6 shall obligate, or be deemed to obligate, the Corporation to include in its proxy statement the nomination of any person nominated as a director by any stockholder of the Corporation.

Section 2.7 .                       Written Consent .  Any corporate action required or permitted to be taken by the stockholders of the Corporation shall be effected only at a duly called annual or special meeting of stockholders of the Corporation and shall not be effected by consent in writing of the stockholders.

Section 2.8 .                       Fixing of Record Date .  In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted and which, unless otherwise required by the DGCL, shall be (i) not more than sixty (60) nor less than ten (10) days before the date of a meeting, and (ii) not more than sixty (60) days prior to any other action.  Such date shall also be the record date for determining the stockholders entitled to vote at such meeting; provided, however, that the Board of Directors may, as of the date it fixes the record date for determining the stockholders entitled to notice of the meeting, fix a record date for determining the stockholders entitled to vote at the meeting that is later than the record date for determining the stockholders entitled to notice of the meeting and is on or prior to the date of the meeting.  A determination of stockholders of record entitled to notice of, or to vote at, a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at 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 at the adjourned meeting.
 
 
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Section 2.9 .                       Voting Lists .  The officer who has charge of the stock ledger of the Corporation shall prepare and, at least ten (10) days before every meeting of stockholders, make a complete list of the stockholders entitled to vote at the meeting (provided, however, that if the record date for determining the stockholders entitled to vote at the meeting on such issue is fewer than ten (10) days before the meeting date, the list shall reflect the stockholders entitled to vote at the meeting as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.  Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the 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 place of the meeting during the whole time thereof, and may be inspected by any stockholder that is present.  If the meeting is to be held solely by means of remote communication, then the list shall also 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 the meeting.

Section 2.10 .                       Quorum and Adjournments .  Unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, at any meeting of stockholders, a majority of the voting power of the outstanding shares of capital stock entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business.  Where a separate vote by a class or classes or series is required, a majority of the voting power of the outstanding shares of such class or classes or series present in person or represented by proxy shall constitute a quorum for the transaction of such item of business.  If such quorum is not present in person or represented by proxy at such meeting, the Chairperson of the Board of Directors (or such other person presiding over the meeting pursuant to Section 2.14) or the holders of a majority of the voting power of the outstanding shares of capital stock entitled to vote thereat, present in person or represented by proxy, may adjourn the meeting to another date, time or place (if any). The stockholders present at a meeting may continue to transact business until adjournment, notwithstanding the withdrawal of such number of stockholders as may leave less than a quorum.
 
 
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When a meeting is adjourned to another date, time or place, notice need not be given of the adjourned meeting if the time and place (if any) thereof, and the means of remote communications (if any) by which stockholders 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; provided, however, that if the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the adjourned meeting; provided, further, however, that if after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting in accordance with Section 2.8, 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.  At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at the original meeting.

Section 2.11 .                       Voting Rights; Proxies .  Unless otherwise provided in the Certificate of Incorporation, each stockholder having voting power shall, at every meeting of the stockholders of the Corporation, be entitled to one (1) vote in person or by proxy for each share of the capital stock having voting power held by such stockholder.  At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing, or by facsimile, electronic mail or any other means of electronic transmission permitted by the DGCL filed in accordance with the procedure established for the meeting, but no proxy shall be voted or acted upon after three (3) years from its date, unless the proxy expressly provides for a longer period.  Any copy, facsimile telecommunication or other reliable reproduction of the writing or electronic transmission created pursuant to this paragraph may be substituted or used in lieu of the original writing or electronic transmission for any and all purposes for which the original writing or electronic transmission could be used, provided that such copy, facsimile telecommunication or other reproduction is a complete reproduction of the entire original writing or electronic transmission.  All voting may (except where otherwise required by law) be by a voice vote; provided, however, that, upon demand therefor by a stockholder entitled to vote or by such stockholder’s proxy, a stock vote shall be taken.

Section 2.12 .                       Inspectors of Election . The Corporation may, and to the extent required by law shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting, count the votes, decide the results and make a written report thereof.  The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act.  If no inspector or alternate appointed in advance of a meeting is able to act at a meeting of stockholders, the person presiding at the meeting may, and to the extent required by law shall, appoint one or more inspectors to act at the meeting.  Each inspector, before entering upon the discharge of such inspector’s duties, shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability.  The inspectors shall have the duties prescribed by applicable law. If there is more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the number of shares of stock represented at the meeting and the results of the voting shall be prima facie evidence thereof.
 
 
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Section 2.13 .                       Vote Required .  At any meeting of stockholders duly called and held at which a quorum is present, (i) except to the extent otherwise required by the Certificate of Incorporation, these Bylaws or the DGCL, in all matters other than the election of directors, the vote of the holders of a majority of the voting power of all then outstanding shares of capital stock present in person or represented by proxy and entitled to vote on the subject matter shall be the act of the stockholders, and (ii) each director shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting of the stockholders and entitled to vote on the election of directors.  The Board of Directors, in its discretion, or any officer entitled to preside at a meeting of stockholders, in his or her discretion, may require that any votes cast at such meeting shall be cast by written ballot.

Section 2.14 .                       Conduct of Meetings .  Meetings of stockholders shall be presided over by the Chairperson of the Board of Directors, if any, provided that, in the absence or inability to act of such person, the Vice Chairperson of the Board, if any, the Chief Executive Officer, if any, the President or the Chief Financial Officer (in that order) shall preside, and in their absence or inability to act, another person designated by the Board of Directors shall preside.  The Secretary of the Corporation shall act as secretary of each meeting of the stockholders; provided, however, that in the event of the Secretary’s absence or inability to act, the Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall act as secretary of the meeting; and, provided further, that in the event of the absence or inability to act of the Secretary and the Assistant Secretaries, the Chairperson of the meeting shall appoint a person who need not be a stockholder of the Corporation to act as secretary of the meeting.  The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the person presiding over any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting.

ARTICLE III
DIRECTORS

Section 3.1 .                       General Powers .  The business and affairs of the Corporation shall be under the direction of, and managed by, the Board of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not required by law, the Certificate of Incorporation or these Bylaws to be done by the stockholders.  Directors need not be residents of the State of Delaware or stockholders of the Corporation.  The number of directors shall be determined in the manner provided in the Certificate of Incorporation.

Section 3.2 .                       Number and Tenure of Directors .  The number and tenure of directors of the Corporation shall be determined as set forth in the Certificate of Incorporation.  Vacancies shall be filled as provided in the Certificate of Incorporation.

Section 3.3 .                       Resignation and Removal .  Any director may resign at any time by giving notice in writing or by electronic transmission to the Board of Directors or to the Secretary of the Corporation. The resignation of any director shall take effect upon receipt of such notice or at such later time as shall be specified in such notice; and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.  Any or all of the directors may be removed from office only on the terms set forth, and in the manner provided, in the Certificate of Incorporation.
 
 
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Section 3.4 .                       Vacancies .  Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, any vacancies occurring in the Board of Directors and newly created directorships shall be filled exclusively by vote of a majority of the  directors then in office, even if less than a quorum, or by a sole remaining director, unless the Board of Directors determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders and except as otherwise provided by law.  In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, may exercise the powers of the full Board of Directors until the vacancy is filled. A director elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office, and a director elected to fill a position resulting from any increase in the authorized number of directors shall hold office until the next election of the class for which such director shall have been chosen (or, if directors are not at that time divided into classes, until the next annual meeting of stockholders to be held in the first year following the year of his or her election), subject in each case to the election and qualification of his or her successor or his or her earlier death, resignation or removal.

Section 3.5 .                       Regular Meetings . Regular meetings of the Board of Directors may be held without notice at such time and in such place, which may be within or without the State of Delaware, as shall from time to time be determined by the Board of Directors; provided, however, that the Board of Directors may determine that the meeting shall not be held in any place, but by means of remote communication.

Section 3.6 .                       Special Meetings .  Special meetings of the Board of Directors may be called by the Chairperson of the Board of Directors, the Chief Executive Officer or the President of the Corporation on at least four (4) days notice, if such notice is mailed, and on at least twenty-four (24) hours notice, if such notice is given personally or by overnight courier, electronic mail, facsimile or other means of electronic transmission, to each director stating the purpose or purposes for which such meeting is being called.  Special meetings shall be called by the Chairperson of the Board of Directors, the Chief Executive Officer or the President in like manner and on like notice at the written request of a majority of the members of the Board of Directors then in office, stating the purpose or purposes for which such meeting is requested.  Notice of any meeting of the Board of Directors for which a notice is required may be waived in writing or by electronic transmission signed by the person or persons entitled to such notice, whether before or after the time of such meeting, and such waiver shall be equivalent to the giving of such notice.
 
 
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Section 3.7 .                       Organization . The Chairperson of the Board of Directors shall preside at all meetings of the Board of Directors.  In the absence of, or inability to act by, the Chairperson of the Board of Directors, the Vice Chairperson of the Board of Directors shall preside; in the absence of, or inability to act by, the Vice Chairperson of the Board of Directors, the Chief Executive Officer, if then a member of the Board of Directors, shall preside; and in the absence of, or inability to act by, the Chief Executive Officer, another director designated by the Board of Directors shall preside.

Section 3.8 .                       Informal Action .  Unless otherwise restricted by the Certificate of Incorporation, these Bylaws or the DGCL, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto in writing, or by facsimile, electronic mail or other means of electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee.  Such filings shall be in paper form if the minutes are maintained in paper form or in electronic form if the minutes are maintained in electronic form.

Section 3.9 .                       Participation by Conference Telephone .  Unless otherwise restricted by the Certificate of Incorporation, these Bylaws or the DGCL, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting.

Section 3.10 .                     Quorum; Voting .  At all meetings of the Board of Directors, a majority of the members of the Board of Directors then in office shall constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by the Certificate of Incorporation, these Bylaws or the DGCL.  If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting to another place, date or time without further notice thereof, unless otherwise required by law.

Section 3.11 .                     Compensation of Directors .  Unless otherwise restricted by the certificate of incorporation or these bylaws, the Board of Directors or a committee thereof shall have the authority to fix the compensation of directors.

Section 3.12 .                     Chairperson of the Board of Directors .  The Chairperson of the Board of Directors, if one is chosen, shall be chosen by the Board of Directors from among the members of the Board of Directors.  The Chairperson of the Board of Directors shall preside at all meetings of the stockholders and of the Board of Directors, and shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.
 
 
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Section 3.13 . Vice Chairperson of the Board of Directors .  The Vice Chairperson of the Board of Directors, if one is chosen, shall be chosen by the Board of Directors from among the members of the Board of Directors.  In the absence of the Chairperson of the Board of Directors or in the event of the Chairperson of the Board of Directors’ inability or refusal to act, the Vice Chairperson of the Board of Directors shall preside at all meetings of the stockholders and of the Board of Directors.  The Vice Chairperson shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe.

ARTICLE IV
COMMITTEES OF DIRECTORS

Section 4.1 .                       Appointment and Powers .  The Board of Directors may, by resolution passed by a majority of the members of the Board of Directors then in office, designate one or more committees, each committee to consist of one or more of the directors of the Corporation.  The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.  Except as otherwise provided by the DGCL or these Bylaws, any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation (including all powers and authority provided to the Board of Directors under the DGCL, the Certificate of Incorporation and these Bylaws), and may authorize the seal of the Corporation to be affixed to all papers which may require it.  Notwithstanding the foregoing, no committee shall have the power or authority (a) to approve or adopt, or recommend to the stockholders, any action or matter expressly required by the DGCL to be submitted to the stockholders for approval (other than the election or removal of directors) or (b) to adopt, amend or repeal any of these Bylaws.

Section 4.2 .                       Committee Rules . Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter 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 of Directors conducts its business pursuant to Article III of these Bylaws.

Section 4.3 .                       Committee Minutes .  Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required.  Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by law.
 
 
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ARTICLE V
OFFICERS

Section 5.1 .                       Number and Qualifications .  The officers of the Corporation shall be chosen by the Board of Directors and shall be a President and a Chief Financial Officer.  The Board of Directors may also choose a Chairperson of the Board of Directors, Chief Executive Officer, a Vice Chairperson of the Board of Directors, one or more Vice Presidents, a Secretary, one or more Assistant Secretaries, a Treasurer, one or more Assistant Treasurers and such additional officers as the Board of Directors may deem necessary or appropriate from time to time.  Membership on the Board of Directors shall not be a prerequisite to the holding of any other office.  Any number of offices may be held by the same person, unless the Certificate of Incorporation or these Bylaws otherwise provide.

Section 5.2 .                       Election .  The Board of Directors at its first meeting after each annual meeting of stockholders shall elect the officers of the Corporation.  If the election of officers is not held at such meeting, such election shall be held as soon thereafter as may be convenient.  The Board of Directors may also elect or appoint officers of the Corporation at any other meeting of the Board of Directors.

Section 5.3 .                       Other Officers and Agents .  The Board of Directors may choose such other officers and agents as it shall deem necessary or appropriate, which officers and agents shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.

Section 5.4 .                       Term of Office .  The officers of the Corporation shall hold office until their successors are chosen and qualified or until their earlier resignation or removal.  Any officer elected or appointed by the Board of Directors may be removed at any time, either with or without cause, by the vote of a majority of the members of the Board of Directors then in office at any meeting of the Board of Directors, but such removal shall be without prejudice to the contract rights, if any, of the officer so removed.  If a vacancy shall exist in any office of the Corporation, the Board of Directors may elect any person to fill such vacancy, such person to hold office as provided in Section 5.1.

Section 5.5 .                       Chief Executive Officer .  The Chief Executive Officer, if any, shall be the principal executive officer of the Corporation and shall, in general, supervise and control all of the business and affairs of the Corporation, unless otherwise provided by the Board of Directors.  In the absence of the Chairperson of the Board of Directors and the Vice Chairperson of the Board of Directors, the Chief Executive Officer shall preside at all meetings of the stockholders and, if the Chief Executive Officer is a director, at all meetings of the Board of Directors, and shall see that orders and resolutions of the Board of Directors are carried into effect.  The Chief Executive Officer may sign bonds, mortgages, certificates for shares and other contracts and documents on behalf of the Corporation, whether or not under the seal of the Corporation, except in cases where the signing and execution thereof shall be expressly delegated by law, the Board of Directors or these Bylaws to some other officer or agent of the Corporation.  The Chief Executive Officer shall have general powers of supervision and shall be the final arbiter of all differences between officers of the Corporation, and the Chief Executive Officer’s decision as to any matter affecting the Corporation shall be final and binding as between the officers of the Corporation, subject, in each case, only to the Board of Directors.  The Chief Executive Officer shall perform such other duties and have such other powers commonly incident to the office of Chief Executive Officer, or as the Board of Directors may from time to time prescribe.
 
 
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Section 5.6 .                       President .  In the absence of the Chief Executive Officer, the President shall perform the duties of the Chief Executive Officer and, when so acting, shall have all the powers of, and be subject to all the restrictions upon, the Chief Executive Officer.  The President shall have concurrent power with the Chief Executive Officer to sign bonds, mortgages, certificates for shares and other contracts and documents, whether or not under the seal of the Corporation, except in cases where the signing and execution thereof shall be expressly delegated by law, the Board of Directors or these Bylaws to some other officer or agent of the Corporation.  In general, the President shall perform such other duties and have such other powers commonly incident to the office of the President, or as the Chief Executive Officer or the Board of Directors may from time to time prescribe.

Section 5.7 .                       Chief Financial Officer .  The Chief Financial Officer shall keep or cause to be kept the books of account of the Corporation in a thorough and proper manner, and shall render statements of the financial affairs of the Corporation in such form and as often as required by the Board of Directors or the Chief Executive Officer.  The Chief Financial Officer shall perform other duties and have such other powers commonly incident to the office of Chief Financial Officer, or as the Board of Directors or the Chief Executive Officer shall designate from time to time.  The Board of Directors or the Chief Executive Officer may direct any assistant financial officer to assume and perform the duties of the Chief Financial Officer in the absence or disability of the Chief Financial Officer, and each assistant financial officer shall perform other duties and have such other powers commonly incident to such office, or as the Board of Directors, the Chief Executive Officer or the President shall designate from time to time.

Section 5.8 .                       Vice President(s) .  The Vice President (or in the event more than one Vice President is elected, each of the Vice Presidents) shall assist the President in the discharge of his or her duties as the President may direct, and shall perform such other duties as from time to time may be assigned to him or her (them) by the Chief Executive Officer, the President or the Board of Directors.  In the absence of the President or in the event of the President’s inability or refusal to act, the Vice President (if there is more than one, in the order designated by the Board of Directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the President and, when so acting, shall have all the powers of, and be subject to all the restrictions upon, the President.
 
 
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Section 5.9 .                       Secretary .  At the direction of the Board of Directors, the Secretary, if any, shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings of the meetings of the Corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the committees of the Board of Directors when required.  The Secretary shall have charge of the books, records and papers of the Corporation and see that the reports, statements and other documents required by law to be kept and filed are properly kept and filed.  The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and meetings of the Board of Directors.  The Secretary shall have custody of the seal of the Corporation, and the Secretary or an Assistant Secretary shall have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested by the Secretary’s signature or by the signature of such Assistant Secretary.  The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by such officer’s signature.  The Secretary shall perform other duties and have such other powers as are commonly incident to the office of Secretary, or as the Board of Directors, the Chief Executive Officer or the President shall designate from time to time.

Section 5.10 .                       Assistant Secretary .  The Assistant Secretary, if any, or if there be more than one, the Assistant Secretaries in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the Secretary or in the event of the Secretary’s inability or refusal to act, perform the duties and exercise the powers of the Secretary and shall perform such other duties and have such other powers as the Chief Executive Officer, the President or the Board of Directors may from time to time prescribe.

Section 5.11 .                       Treasurer .  The Treasurer, if any, shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors.  The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Chief Executive Officer and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all of the Treasurer’s transactions as Treasurer and of the financial condition of the Corporation.  The Treasurer shall perform such other duties and have such other powers commonly incident to the office of Treasurer, or as the Chief Executive Officer, the President, the Chief Financial Officer or the Board of Directors may from time to time prescribe.

Section 5.12 .                       Assistant Treasurer .  The Assistant Treasurer, if any, or if there shall be more than one, the Assistant Treasurers in the order determined by the Board of Directors (or if there be no such determination, then in the order of their election), shall, in the absence of the Treasurer or in the event of the Treasurer’s inability or refusal to act, perform the duties and exercise the powers of the Treasurer and shall perform such other duties and have such other powers as the Chief Executive Officer, the President, the Chief Financial Officer or the Board of Directors may from time to time prescribe.
 
 
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Section 5.13 .                       Other Officers .  Such other officers or assistant officers as the Board of Directors may choose shall perform such duties and have such powers as may be prescribed by the Board of Directors.  The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.

ARTICLE VI
CERTIFICATES OF STOCK, TRANSFERS AND RECORD DATES

Section 6.1 .                       Form of Certificates .  The shares of the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or resolutions that shares of some or all of any or all classes or series of its stock shall be uncertificated.  Any such resolutions shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation.  Notwithstanding the adoption of such a resolution by the Board of Directors, every holder of stock in the Corporation shall be entitled to have a certificate signed by, or in the name of, the Corporation by (a) the Chairperson of the Board of Directors, the Vice Chairperson of the Board of Directors or the President of the Corporation, and (b) the Secretary, the Treasurer, an Assistant Secretary or an Assistant Treasurer of the Corporation, certifying the number of shares owned by such holder in the Corporation.  If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of such class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the Corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided in Section 202 of the DGCL, in lieu of the foregoing requirements, there may be set forth, on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock, 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 and/or rights.  Subject to the foregoing, certificates of stock of the Corporation shall be in such form as the Board of Directors may from time to time prescribe.

Section 6.2 .                       Facsimile Signatures .  Where a certificate is countersigned (i) by a transfer agent other than the Corporation or its employee or (ii) by a registrar other than the Corporation or its employee, any other 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 shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
 
 
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Section 6.3 .                       Lost Certificates .  The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed.  When authorizing such issue of a new certificate or certificates, the Corporation may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or such owner’s legal representative, to advertise the same in such manner as the Corporation shall require and/or give the Corporation a bond in such sum as it may direct as indemnity, or other form of indemnity, against any claim that may be made against the Corporation or its transfer agent or registrar with respect to the certificate alleged to have been lost, stolen or destroyed.

Section 6.4 .                       Transfers of Shares .  All transfers of shares of the stock of the Corporation are subject to the terms, conditions and restrictions, if any, of the Certificate of Incorporation.  Transfers of shares of the capital stock of the Corporation shall be made on the books of the Corporation by the registered holder thereof, or by such holder’s attorney thereunder authorized by power of attorney duly executed and filed with the Secretary of the Corporation, or with a transfer agent appointed as provided in Section 6.5, and, if certificated shares, on surrender of the certificate or certificates for the shares properly endorsed and the payment of all transfer taxes thereon.  The person in whose names shares of stock are registered on the books of the Corporation shall be considered the owner thereof for all purposes as regards the Corporation, but whenever any transfer of shares is made for collateral security, and not absolutely, that fact, if known to the Secretary, shall be stated in the entry of transfer.  The Board of Directors may, from time to time, make any additional rules and regulations as it may deem expedient, not inconsistent with these Bylaws, concerning the issue, transfer and registration of shares of capital stock of the Corporation.

Section 6.5 .                       Transfer Agents and Registrants   The Board of Directors may appoint one or more transfer agents and one or more registrars for the stock of the Corporation.

Section 6.6 .                       Registered Stockholders .  The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recog­nize any equitable or other claim to, or interest in, such share or shares on the part of any other person, whether or not the Corporation shall have express or other notice thereof, except as otherwise required by the laws of the State of Delaware.
 
 
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ARTICLE VII
NOTICES

Section 7.1 .                       General .  Except as otherwise specifically required in these Bylaws or by law, all notices required to be given pursuant to these Bylaws shall be in writing and may, (a) in every instance in connection with any delivery to a member of the Board of Directors, be effectively given by hand delivery (including use of a delivery service), by depositing such notice in the United States mail, postage prepaid, or by sending such notice by prepaid telegram, cablegram, overnight express courier, facsimile, electronic mail or other form of electronic transmission and (b) be effectively delivered to a stockholder when given by hand delivery, by depositing such notice in the United States mail, postage prepaid or, if specifically consented to by the stockholder as described in Section 7.2 of this Article VII by sending such notice by telegram, cablegram, facsimile, electronic mail or other form of electronic transmission. Any such notice shall be addressed to the person to whom notice is to be given at such person’s address as it appears on the records of the Corporation. The notice shall be deemed given (a) in the case of hand delivery, when received by the person to whom notice is to be given or by any person accepting such notice on behalf of such person, (b) in the case of delivery by United States mail, upon deposit in the mail and (c) in the case of delivery via telegram, cablegram, facsimile, electronic mail or other form of electronic transmission, when dispatched.

Section 7.2 .                       Electronic Transmission .  Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice given by the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these Bylaws, to stockholders by electronic mail, facsimile or other electronic transmission shall be effective, provided that notice is given by a form of electronic mail, facsimile or other electronic transmission consented to by the stockholder to whom the notice is given.  Any such consent is revocable by the stockholder by written notice to the Corporation.  Any such consent shall be deemed to be revoked if (a) the Corporation is unable to deliver two consecutive notices to such stockholder by electronic mail, facsimile or electronic transmission, and (b) such inability becomes known to the Secretary, any Assistant Secretary of the Corporation or the transfer agent for the Corporation or such other person responsible for giving notice; provided, however, that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.  Notice given pursuant to this Section 7.2 shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of such posting and the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder.

Section 7.3 .                       Waiver .  Whenever any notice is required to be given under applicable law or the provisions of the Certificate of Incorporation or these Bylaws, a waiver thereof in writing or by electronic transmission, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.  Neither the business to be transacted at, nor the purpose of, any regular or special meeting of stockholders, directors or members of a committee of the Board of Directors need be specified in any written waiver of notice or any waiver given by electronic transmission.
 
 
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Section 7.4 .                       Attendance as Waiver of Notice .  Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, and objects at the beginning of such meeting, to the transaction of any business because such meeting is not lawfully called or convened.

ARTICLE VIII
INDEMNIFICATION

Section 8.1 .                       General .  The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL, each person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, partnership, limited liability company, joint venture, trust or other enterprise (a “Covered Person”), against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such Covered Person in connection with such action, suit or proceeding if such Covered Person acted in good faith and in a manner such Covered Person 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 such Covered Person’s 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 such Covered Person did not act in good faith and in a manner which such Covered Person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, have reasonable cause to believe that such Covered Person’s conduct was unlawful.  The indemnification provided for under this Article VIII shall continue as to a Covered Person who has ceased to be a director or officer of the Corporation.

Section 8.2 .                       Indemnification Against Expenses .  To the extent that a Covered Person has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Section 8.1, or in defense of any claim, issue or matter therein, such Covered Person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith to the fullest extent authorized by the DGCL.

Section 8.3 .                       Board Determinations .  Any indemnification hereof (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of a Covered Person is proper in the circumstances because such Covered Person has met the applicable standard of conduct set forth in Section 8.1. Such determination shall be made with respect to a Covered Person who is a director or officer at the time of such determination: (a) by a majority vote of the directors who were not parties to such action, suit or proceeding, even though less than a quorum; (b) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; or (c) if there are no such disinterested directors, by the stockholders.
 
 
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Section 8.4 .                       Advancement of Expenses .  Expenses (including attorneys’ fees) incurred by a Covered Person in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding to the fullest extent authorized by the DGCL upon receipt of an undertaking by or on behalf of such Covered Person to repay such amount if it shall ultimately be determined that such Covered Person is not entitled to be indemnified by the Corporation as authorized by law, the Certificate of Incorporation or in this Article VIII.  Such expenses (including attorneys’ fees) incurred by Covered Persons may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.

Section 8.5 .                       Nonexclusivity of Rights .  The rights and authority conferred in this Article VIII shall not be exclusive of any other right that any Covered Person may otherwise have or hereafter acquire, both as to action in their official capacities and as to action in another capacity while holding such office.  Neither the amendment nor repeal of this Article VIII, nor the adoption of any provision of the Certificate of Incorporation or these Bylaws, nor, to the fullest extent permitted by the DGCL, any modification of law, shall eliminate or reduce the effect of this Article VIII in respect of any acts or omissions occurring prior to such amendment, repeal, adoption or modification.

Section 8.6 .                       Insurance .  The Corporation shall have the right, power and authority to purchase and maintain insurance on behalf of any Covered Person against any liability asserted against such person and incurred by such Covered Person in any such capacity, or arising out of such Covered Person’s status as such, whether or not the Corporation would have the power to indemnify such Covered Person against any liability asserted against such Covered Person and incurred by such Covered Person in any such capacity, or arising out of such Covered Person’s status as such, whether or not the Corporation would have the power to indemnify such Covered Person against such liability under the provisions of the Certificate of Incorporation, this Article VIII and the DGCL.

Section 8.7 .                       Other Indemnification .  The Corporation may, by action of the Board of Directors, provide indemnification to employees and agents of the Corporation with the same or lesser scope and effect as the foregoing indemnification of Covered Persons and to such extent and to such effect as the Board of Directors shall determine to be appropriate and authorized by the DGCL.
 
 
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Section 8.8 .                       Certain Definitions .  For purposes of this Article VIII, (a) references to “the Corporation” shall include, in addition to the Corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued; (b) references to “fines” shall include any excise taxes assessed on a Covered Person with respect to any employee benefit plan; (c) references to “other enterprises” shall be deemed to include any employee benefit plans, including without limitation, any plan of the Corporation that is governed by the Act of Congress entitled “Employee Retirement Income Security Act of 1974,” as amended from time to time; (d) references to “serving at the request of the Corporation” shall include any service by a Covered Person as a director or officer of the Corporation which imposes duties on, or involves services by, such Covered Person with respect to any employee benefit plan, its participants, or beneficiaries; and (e) a Covered Person who acted in good faith and in a manner such Covered 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 interests of the Corporation.”

Section 8.9 .                       Change in Governing Law .  In the event of any amendment or addition to Section 145 of the DGCL or the addition of any other section to such law which shall limit indemnification rights thereunder, the Corporation shall, to the fullest extent permitted by the DGCL, indemnify to the fullest extent authorized or permitted hereunder, any Covered Person, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding.

Section 8.10 .                       Repeal or Modification of Indemnification .  Any repeal or modification of this Article VIII by the stockholders of the Corporation shall not conflict with or adversely affect any right or protection of a Covered Person existing at the time of such repeal or modification.


ARTICLE IX
GENERAL PROVISIONS

Section 9.1 .                       Dividends .  Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting thereof, pursuant to law, out of funds legally available therefor.  Dividends may be paid in cash, in property or in shares of capital stock or rights to acquire the same, subject to the provisions of the Certificate of Incorporation.  Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the directors shall think conducive to the interest of the Corporation, and the directors may modify or abolish any such reserve in the manner in which it was created.
 
 
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Section 9.2 .                       Checks .  All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.

Section 9.3 .                       Fiscal Year .  The fiscal year of the Corporation shall end on the thirty-first (31st) day of December of each year unless otherwise fixed by resolution of the Board of Directors.

Section 9.4 .                       Stock in Other Corporations .  Shares of any other corporation which may from time to time be held by this Corporation may be represented and voted at any meeting of stockholders of such corporation by the Chief Executive Officer, the President, the Chief Financial Officer or a Vice President of the Corporation, or by any proxy appointed in writing by the Chief Executive Officer, the President, the Chief Financial Officer or a Vice President of the Corporation, or by any other person or persons thereunto authorized by the Board of Directors.  Shares of capital stock of any other corporation represented by certificates standing in the name of the Corporation may be endorsed for sale or transfer in the name of the Corporation by the Chief Executive Officer, the President, the Chief Financial Officer or any Vice President of the Corporation or by any other officer or officers thereunto authorized by the Board of Directors.

Section 10.5 .                       Corporate Seal .  The Corporation may have, but shall not be required to have, a corporate seal as shall be determined by the Secretary of the Corporation in the Secretary’s discretion.  If a corporate seal is obtained, the seal shall contain the name of the Corporation and the words “Corporate Seal, Delaware,” and the use thereof shall be determined from time to time by the officer or officers executing and delivering instruments on behalf of the Corporation, provided that the affixing of a corporate seal to an instrument shall not give the instrument additional force or effect or change the construction thereof.  The seal, if any, may be used by causing it, or a facsimile thereof, to be impressed or affixed or in any other manner reproduced.

Section 9.6 .                       Reliance Upon Books and Records .  A member of the Board of Directors, or a member of any committee designated by the Board of Directors shall, in the performance of such person’s duties, be fully protected in relying in good faith upon records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporation’s officers or employees, or committees of the Board of Directors, or by any other person as to matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
 
 
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Section 9.7 .                       Certificate of Incorporation Governs .  In the event of any conflict between the provisions of the Certificate of Incorporation and these Bylaws, the provisions of the Certificate of Incorporation shall govern.

Section 9.8 .                       Severability .  If any provision of these Bylaws shall be held to be invalid, illegal, unenforceable or in conflict with the provisions of the Certificate of Incorporation, then such provision shall nonetheless be enforced to the maximum extent possible consistent with such holding and the remaining provisions of these Bylaws (including without limitation, all portions of any section of these Bylaws containing any such provision held to be invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation, that are not themselves invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation) shall remain in full force and effect.

ARTICLE XI
AMENDMENTS

These Bylaws may be altered, amended or repealed, and new bylaws may be adopted, only in the manner provided in the Certificate of Incorporation.
 
 
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