FOURTH AMENDED & RESTATED BYLAWS
SECTION 1—STOCKHOLDERS
Section 1.1.
Annual Meeting
. An annual meeting of the
stockholders for the election of directors to succeed those whose term expire and for the transaction of such other business as
may properly come before the meeting shall be held at the place, if any, within or without the State of Delaware, on the date and
at the time that the board of directors of the Corporation (the “
Board of Directors
”) shall each year fix. Unless
stated otherwise in the notice of the annual meeting of the stockholders of the Corporation, such annual meeting shall be at the
principal office of the Corporation.
Section 1.2.
Advance Notice of Nominations and Proposals
of Business
.
(a) Nominations of persons for election to the Board of Directors
and proposals for business to be transacted by the stockholders at an annual meeting of stockholders may be made (i) pursuant to
the Corporation’s notice with respect to such meeting, (ii) by or at the direction of the Board of Directors or (iii) by
any stockholder of record of the Corporation who (A) was a stockholder of record at the time of the giving of the notice contemplated
in Section 1.2(b), (B) is entitled to vote at such meeting and (C) has complied with the notice procedures set forth in this Section
1.2. Clause (iii) of this Section 1.2 shall be the exclusive means for a stockholder to make nominations or propose other business
(other than matters properly brought pursuant to applicable provisions of federal law, including the Securities Exchange Act of
1934 (as amended from time to time, the “
Act
”)) before an annual meeting of stockholders.
(b) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (iii) of Section 1.2(a), (i) the stockholder must have given timely
notice thereof in writing to the Secretary of the Corporation with the information contemplated by Section 1.2(c), and (ii) the
business must be a proper matter for stockholder action under the Delaware General Corporation Law (the “
DGCL
”).
(c) To be timely, a stockholder’s notice must be delivered
to the Secretary of the Corporation at the principal executive offices of the Corporation a date (i) not fewer than 90 nor more
than 120 days prior to the anniversary date of the prior year’s annual meeting or (ii) if there was no annual meeting in
the prior year or if the date of the current year’s annual meeting is more than 30 days before or after the anniversary date
of the prior year’s annual meeting, on or before 10 days after the day on which the date of the current year’s annual
meeting is first disclosed in a public announcement. In no event shall any adjournment or postponement of an annual meeting or
the announcement thereof commence a new time period for the delivery of such notice. Such notice from a stockholder must state
(i) as to each nominee that the stockholder proposes for election or reelection as a director, (A) all information relating to
such nominee that would be required to be disclosed in solicitations of proxies for the election of such nominee as a director
pursuant to Regulation 14A under the Act and such nominee’s written consent to serve as a director if elected, and (B) a
description of all direct and indirect compensation and other material monetary arrangements, agreements or understandings during
the past three years, and any other material relationship, if any, between or concerning such stockholder and its respective affiliates
or associates, or others with whom they are acting in concert, on the one hand, and the proposed nominee, and his or her respective
affiliates or associates, on the other hand; (ii) as to each proposal that the stockholder seeks to bring before the meeting, a
brief description of such proposal, the reasons for making the proposal at the meeting, and any material interest that the stockholder
has in the proposal; (iii) (A) the name and address of the stockholder, (B) the class (and, if applicable, series) and number of
shares of stock of the Corporation that are, directly or indirectly, owned beneficially or of record by the stockholder or any
Stockholder Associated Person (as defined below), (C) any option, warrant, convertible security, stock appreciation right or similar
right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class (or, if applicable,
series) of shares of stock of the Corporation or with a value derived in whole or in part from the value of any class (or, if applicable,
series) of shares of stock of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying
class or series of capital stock of the Corporation or otherwise (each, a “
Derivative Instrument
”) directly
or indirectly owned beneficially or of record by such stockholder or any Stockholder Associated Person and any other direct or
indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of stock of
the Corporation of the stockholder or any Stockholder Associated Person, (D) any proxy, contract, arrangement, understanding or
relationship pursuant to which such stockholder or any Stockholder Associated Person has a right to vote any securities of the
Corporation, (E) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly,
by a general or limited partnership in which such stockholder or any Stockholder Associated Person is a general partner or beneficially
owns an interest in a general partner, (F) any performance-related fees (other than an asset-based fee) that such stockholder or
any Stockholder Associated Person is entitled to based on any increase or decrease in the value of the shares of stock of the Corporation
or Derivative Instruments and (G) whether either the stockholder intends to deliver a proxy statement and form of proxy to holders
of, in the case of a proposal, at least the percentage of the Corporation’s voting shares required under applicable law to
carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Corporation’s voting
shares reasonably believed by such stockholder to be sufficient to elect such nominee or nominees. For purposes of these bylaws,
a “
Stockholder Associated Person
” of any stockholder means (i) any “affiliate” or “associate”
(as those terms are defined in Rule 12b-2 under the Act) of the stockholder that owns beneficially or of record any capital stock
or other securities of the Corporation and (ii) any person acting in concert with such stockholder or any affiliate or associate
of such stockholder with respect to the capital stock or other securities of the Corporation. In addition, any nominee proposed
by a stockholder shall complete a questionnaire, in a form provided by the Corporation, within 10 days of receipt of the form of
questionnaire from the Corporation.
(d) Subject to the certificate of incorporation of the Corporation
(as amended from time to time, the “
Certificate of Incorporation
”) and applicable law, only persons nominated
in accordance with procedures stated in this Section 1.2 shall be eligible for election as and to serve as a member of the Board
of Directors and the only business that shall be conducted at an annual meeting of stockholders is the business that has been brought
before the meeting in accordance with the procedures set forth in this Section 1.2. The chairman of the meeting shall have the
power and the duty to determine whether a nomination or any proposal has been made according to the procedures stated in this Section
1.2 and, if any nomination or proposal does not comply with this Section 1.2, unless otherwise required by law, the nomination
or proposal shall be disregarded.
(e) For purposes of this Section 1.2, “
public announcement
”
means disclosure in a press release reported by the Dow Jones News Service, Associated Press or a comparable news service or in
a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Act.
(f) Notwithstanding the foregoing provisions of this Section
1.2, a stockholder shall also comply with all applicable requirements of the Act and the rules and regulations thereunder with
respect to matters set forth in this Section 1.2. Nothing in this Section 1.2 shall affect any rights, if any, of stockholders
to request inclusion of proposals in the Corporation’s proxy statement pursuant to applicable provisions of federal law,
including the Act.
Section 1.3.
Special Meetings; Notice
.
Special meetings of the stockholders of the Corporation may
be called only in the manner set forth in the Certification of Incorporation. Notice of every special meeting of the stockholders
of the Corporation shall state the purpose of such meeting. Except as otherwise required by law, the business conducted at a special
meeting of stockholders of the Corporation shall be limited exclusively to the business set forth in the Corporation’s notice
of meeting, and the individual or group calling such meeting shall have exclusive authority to determine the business included
in such notice.
Section 1.4.
Notice of Meetings
.
Notice of the place, if any, date and time of all meetings of
stockholders of the Corporation, and the means of remote communications, if any, by which stockholders and proxy holders may be
deemed present and vote at such meeting, and, in the case of all special meetings of stockholders, the purpose of the meeting,
shall be given, not fewer than 10 nor more than 60 days before the date on which such meeting is to be held, to each stockholder
entitled to notice of the meeting.
The Corporation may postpone or cancel any annual or special
meeting of stockholders of the Corporation that was previously called by the Board of Directors by making a public announcement
(as defined in Section 1.2(e)) of such postponement or cancellation prior to the meeting. When a previously called annual or special
meeting is postponed to another time or place, if any, notice of the place (if any), date and time of the postponed meeting and
the means of remote communications, if any, by which stockholders and proxy holders may be deemed present and vote at such postponed
meeting, shall be given in conformity with this Section 1.4 unless such meeting is postponed not more than 120 days after initial
notice of the meeting was provided in conformity with this Section 1.4.
When a meeting is adjourned to another 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 communication, if any,
by which stockholders and proxy holders may be deemed to be present and vote at such adjourned meeting are announced at the meeting
at which the adjournment is taken;
however
, if the date of any adjourned meeting is more than 30 days after the date for
which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, notice of the place, if any,
date and time of the adjourned meeting and the means of remote communication, if any, by which stockholders and proxy holders may
be deemed present and vote at such adjourned meeting, shall be given in conformity herewith. At any adjourned meeting, any business
may be transacted that may have been transacted at the original meeting.
Section 1.5.
Quorum
.
At any meeting of the stockholders, the holders of shares of
stock of the Corporation entitled to cast a majority of the total votes entitled to be cast by the holders of all outstanding capital
stock of the Corporation, present in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent
that the presence of a larger number is required by applicable law or the Certificate of Incorporation. If a separate vote by one
or more classes or series is required, the holders of shares entitled to cast a majority of the total votes entitled to be cast
by the holders of the shares of the class or classes or series, present in person or represented by proxy, shall constitute a quorum
entitled to take action with respect to that vote on that matter.
If a quorum shall fail to attend any meeting, the chairman of
the meeting may adjourn the meeting to another place, if any, date and time.
Section 1.6.
Organization
.
The Chairman of the Board or, in his or her absence, the person
whom the Board of Directors designates or, in the absence of that person or the failure of the Board of Directors to designate
a person, the Chief Executive Officer of the Corporation or, in his or her absence, the person chosen by the holders of a majority
of the shares entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders of the
Corporation and act as chairman of the meeting. In the absence of the Secretary of the Corporation, the secretary of the meeting
shall be the person the chairman appoints.
Section 1.7.
Conduct of Business
.
The chairman of any meeting of stockholders of the Corporation
shall determine the order of business and the rules of procedure for the conduct of such meeting, including the manner of voting
and the conduct of discussion as he or she determines to be in order. The chairman shall have the power to adjourn the meeting
to another place, if any, date and time. The date and time of the opening and closing of the polls for each matter upon which the
stockholders will vote at the meeting shall be announced at the meeting.
Section 1.8.
Proxies; Inspectors
.
(a) 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 a transmission permitted by applicable law.
(b) Prior to a meeting of the stockholders of the Corporation,
the Corporation shall appoint one or more inspectors to act at a meeting of stockholders of the Corporation 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 is able to act at a meeting of stockholders, the person presiding at the meeting may, and to
the extent required by applicable law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before beginning
the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his or her ability. The inspectors may appoint or retain other persons or entities to assist the inspectors
in the performance of the duties of inspectors. The inspectors shall have the duties prescribed by applicable law.
Section 1.9.
Voting
.
Except as otherwise required by applicable law or by the Certificate
of Incorporation, all matters other than the election of directors shall be determined by a majority of the votes cast on the matter
affirmatively or negatively. All elections of directors shall be determined by a plurality of the votes cast.
Section 1.10.
Stock List
.
A complete list of stockholders of the Corporation entitled
to vote at any meeting of stockholders of the Corporation, arranged in alphabetical order for each class of stock and showing the
address of each such stockholder and the number of shares registered in the name of such stockholder, shall be open to the examination
of any such stockholder, for any purpose germane to a meeting of the stockholders of the Corporation, for a period of at least
10 days before 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;
provided
,
however
, if the record date for determining the stockholders entitled to vote is less
than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the 10th day before such meeting
date.
The stock list shall also be open to the examination of any
such stockholder during the entire meeting. The Corporation may look to this list as the sole evidence of the identity of the stockholders
entitled to vote at a meeting and the number of shares held by each stockholder.
SECTION 2—BOARD OF DIRECTORS
Section 2.1.
Number of Directors; Qualifications of Directors
.
The number of directors constituting the Board of Directors
shall be not fewer than 2 and not more than 6. Subject to the previous sentence and the special right of the holders of any class
or series of stock to elect directors, the precise number of directors shall be fixed from time to time exclusively by the Board
of Directors pursuant to a resolution adopted by a majority of the total number of directors that the Corporation would have if
there were no vacancies. Directors need not be stockholders to be qualified for election or service as a director of the Corporation.
Section 2.2.
Removal; Resignation
.
Any director or the entire Board of Directors may be removed
by the holders of a majority of the shares then entitled to vote at an election of directors. Any director may resign at any time
upon notice given in writing, including by electronic transmission, to the Corporation.
Section 2.3.
Regular Meetings
.
Regular meetings of the Board of Directors shall be held at
the place (if any), on the date and at the time as shall have been established by the Board of Directors and publicized among all
directors. A notice of a regular meeting, the date of which has been so publicized, shall not be required.
Section 2.4.
Special Meetings
.
Special meetings of the Board of Directors may be called by
the President or by two or more directors then in office and shall be held at the place, if any, on the date and at the time as
he, she or they shall fix. Notice of the place, if any, date and time of each special meeting shall be given to each director either
(a) by mailing written notice thereof not fewer than five days before the meeting, or (b) by telephone, facsimile or electronic
transmission providing notice thereof not fewer than twenty-four hours before the meeting. Unless otherwise stated in the notice
thereof, any and all business may be transacted at a special meeting of the Board of Directors.
Section 2.5.
Quorum
.
At any meeting of the Board of Directors, a majority of the
total number of directors then in office shall constitute a quorum for all purposes. If a quorum shall fail to attend any meeting,
a majority of those present may adjourn the meeting to another place, if any, date or time, without further notice or waiver thereof.
Section 2.6.
Participation in Meetings By Conference Telephone
or Other Communications Equipment
.
Members of the Board of Directors, or of any committee thereof,
may participate in a meeting of the Board of Directors or committee thereof by means of conference telephone or other communications
equipment by means of which all directors participating in the meeting can hear each other director, and such participation shall
constitute presence in person at the meeting.
Section 2.7.
Conduct of Business
.
At any meeting of the Board of Directors, business shall be
transacted in the order and manner that the Board of Directors may from time to time determine, and all matters shall be determined
by the vote of a majority of the directors present, except as otherwise provided in the Certificate of Incorporation or these bylaws
or required by applicable law. The Board of Directors or any committee thereof may take action without a meeting if all members
thereof consent thereto in writing or by electronic transmission, and the writing or writings, or electronic transmission or electronic
transmissions, are filed with the minutes of proceedings of the Board of Directors or any committee thereof. Such filing shall
be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic
form.
Section 2.8.
Compensation of Directors
.
The Board of Directors shall be authorized to fix the compensation
of directors. The directors of the Corporation shall be paid their expenses, if any, of attendance at each meeting of the Board
of Directors and shall be reimbursed a fixed sum for attendance at each meeting of the Board of Directors, paid an annual retainer
or paid other compensation, including equity compensation, as directors of the Corporation. No such payment shall preclude any
director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees shall be
paid compensation for attending committee meetings and/or have their expenses, if any, of attendance of each meeting of such committee
reimbursed.
SECTION 3—COMMITTEES
Section 3.1.
Committees of the Board of Directors
.
The Board of Directors may designate committees of the Board
of Directors, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board of Directors
and shall, for those committees, appoint a director or directors to serve as the member or members, designating, if it desires,
other directors as alternate members who may replace any absent or disqualified member at any meeting of such committee. In the
absence or disqualification of any member of any committee and any alternate member in his or her place, the member or members
of the committee present at the meeting and not disqualified from voting, whether or not he or she or they constitute a quorum,
may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified
member.
SECTION 4—OFFICERS
Section 4.1.
Generally
.
The officers of the Corporation shall consist of a President,
one or more Vice Presidents, a Secretary, a Treasurer and other officers as may from time to time be appointed by the Board of
Directors. Each officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation
or removal. Any number of offices may be held by the same person. The salaries of officers appointed by the Board of Directors
shall be fixed from time to time by the Board of Directors or a committee thereof or by the officers as may be designated by resolution
of the Board of Directors.
Section 4.2.
President
.
Unless otherwise determined by the Board of Directors, the President
shall be the Chief Executive Officer of the Corporation. Subject to the provisions of these bylaws and to the direction of the
Board of Directors, he or she shall have the responsibility for the general management and control of the business and affairs
of the Corporation and shall perform all duties and have all powers that are commonly incident to the office of chief executive
or which are delegated to him or her by the Board of Directors. He or she shall have the power to sign all contracts and other
instruments of the Corporation that are authorized and shall have general supervision and direction of all of the other officers,
employees and agents of the Corporation.
Section 4.3.
Vice President
.
Each Vice President shall have the powers and duties delegated
to him or her by the Board of Directors or the President. One Vice President may be designated by the Board of Directors to perform
the duties and exercise the powers of the President in the event of the President’s absence or disability.
Section 4.4.
Treasurer
.
The Treasurer shall have the responsibility for maintaining
the financial records of the Corporation. He or she shall make such disbursements of the funds of the Corporation as are authorized
and shall render from time to time an account to the Board of Directors of all such transactions and of the financial condition
of the Corporation. The Treasurer shall also perform other duties as the Board of Directors may from time to time prescribe.
Section 4.5.
Secretary
.
The Secretary shall issue all authorized notices for, and shall
keep minutes of, all meetings of the stockholders and the Board of Directors. He or she shall have charge of the corporate books
and shall perform other duties as the Board of Directors may from time to time prescribe.
Section 4.6.
Delegation of Authority
.
The Board of Directors may from time to time delegate the powers
or duties of any officer to any other officer or agent, notwithstanding any provision hereof.
Section 4.7.
Removal
.
The Board of Directors may remove any officer of the Corporation
at any time, with or without cause.
Section 4.8.
Action with Respect to Securities of Other Companies
.
Unless otherwise directed by the Board of Directors, the President,
or any officer of the Corporation authorized by the President, shall have power to vote and otherwise act on behalf of the Corporation,
in person or by proxy, at any meeting of stockholders or equityholders of, or with respect to any action of, stockholders or equityholders
of any other entity in which the Corporation may hold securities and otherwise to exercise any and all rights and powers that the
Corporation may possess by reason of its ownership of securities in such other entity.
SECTION 5—STOCK
Section 5.1.
Certificates of Stock
.
Shares of the capital stock of the Corporation shall be uncertificated,
as permitted by the DGCL.
Section 5.2.
Transfers of Stock
.
Transfers of stock shall be made only upon the transfer books
of the Corporation kept at an office of the Corporation (within or without the State of Delaware) or by transfer agents designated
to transfer shares of the stock of the Corporation.
Section 5.3.
Regulations
.
The issue, transfer, conversion and registration of shares of
stock of the Corporation shall be governed by other regulations as the Board of Directors may establish.
Section 5.4.
Record Date
.
(a) In order for the Corporation to determine the stockholders
of the Corporation entitled to notice of any meeting of stockholders of the Corporation, the Board of Directors may, except as
otherwise required by applicable law, fix a record date, which record date shall not precede the date on which the resolution fixing
the record date is adopted and which record date shall not be more than 60 nor fewer than 10 days before the date of any meeting
of stockholders. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders
entitled to vote at such meeting unless the Board of Directors determines that a later date on or before the date of the meeting
shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of and to vote at a meeting of stockholders of the Corporation shall be at the close of business
on the day next preceding the day on which notice is given or, if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held.
(b) A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders of the Corporation shall apply to any postponement or adjournment of the meeting,
provided
,
that the Board of Directors may fix a new record date for determination of the stockholders entitled to vote at a postponed or
adjourned meeting, and in such case shall also fix the record date of the stockholders entitled to notice of such postponed or
adjourned meeting at the same or on an earlier date as that fixed for determination of the stockholders entitled to vote at the
postponed or adjourned meeting.
SECTION 6—NOTICES
Section 6.1.
Notices
.
If mailed, notice to a stockholder of the Corporation shall
be deemed given when deposited in the mail, postage prepaid, directed to a stockholder at such stockholder’s address as it
appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given effectively to stockholders,
any notice to stockholders of the Corporation may be given by electronic transmission in the manner provided in Section 232 of
the DGCL.
Section 6.2.
Waivers
.
A written waiver of any notice, signed by a stockholder or director,
or a waiver by electronic transmission by such person or entity, whether given before or after the time of the event for which
notice is to be given, shall be deemed equivalent to the notice required to be given to such person or entity. Neither the business
nor the purpose of any meeting need be specified in the waiver. Attendance at any meeting shall constitute waiver of notice except
attendance for the sole purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened.
SECTION 7—MISCELLANEOUS
Section 7.1.
Corporate Seal
.
The Board of Directors may provide a suitable seal, containing
the name of the Corporation, which seal shall be in the charge of the Secretary. If and when so directed by the Board of Directors,
duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section 7.2.
Reliance upon Books, Reports, and Records
.
Each director and each member of any committee designated by
the Board of Directors of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good
faith upon the books and records of the Corporation and upon such information, opinions, reports or statements presented to the
Corporation by any of its officers, agents or employees, or committees of the Board of Directors so designated, or by any other
person or entity as to matters that such director or committee member reasonably believes are within such other person’s
or entity’s professional or expert competence and that has been selected with reasonable care by or on behalf of the Corporation.
Section 7.3.
Fiscal Year
.
The fiscal year of the Corporation shall be as fixed by the
Board of Directors.
Section 7.4.
Time Periods
.
In applying any provision of these bylaws that requires that
an act be done or not be done a specified number of days before an event or that an act be done during a specified number of days
before an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall
be included.
SECTION 8—AMENDMENTS
These bylaws may be altered, amended or repealed in accordance
with the Certificate of Incorporation.
SECTION 9—INDEMNIFICATION AND ADVANCEMENT
OF EXPENSES
Section 9.1.
Indemnification and Advancement of Expenses
.
The Corporation shall indemnify and advance expenses to, and
hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person
(an “
Indemnitee
”) who was or is made, or is threatened to be made, a party or is otherwise involved in any action,
suit or proceeding, whether civil, criminal, administrative or investigative (a “
Proceeding
”), by reason of
the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or an officer of the
Corporation or, while a director or an officer of the Corporation, is or was serving at the request of the Corporation as a director,
officer, employee, member, trustee or agent of another corporation or of a partnership, joint venture, trust, nonprofit entity
or other enterprise (including, but not limited to, service with respect to employee benefit plans), against all liability and
loss suffered (including, but not limited to, expenses (including, but not limited to, attorneys’ fees and expenses), judgments,
fines and amounts paid in settlement and reasonably incurred by such Indemnitee). Notwithstanding the preceding sentence, the Corporation
shall be required to indemnify, or advance expenses to, an Indemnitee in connection with a Proceeding (or part thereof) commenced
by such Indemnitee only if the commencement of such Proceeding (or part thereof) by the Indemnitee was authorized by the Board
of Directors of the Corporation or the Proceeding (or part thereof) relates to the enforcement of the Corporation’s obligations
under this Section 9.1.
Section 9.2.
Insurance
.
The Corporation shall purchase and maintain insurance on behalf
of any person who is or was a director, officer, trustee, employee or agent of the Corporation, or was serving at the request of
the Corporation as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust, non-profit
entity or other enterprise (including, but not limited to, service with respect to employee benefit plans), against any liability
asserted against the person and incurred by the person in any such capacity, or arising out of his or her status as such, whether
or not the Corporation would have the power or the obligation to indemnify such person against such liability under the provisions
of this Section 9.
Section 9.3.
Non-Exclusivity of Rights
.
The indemnification provided by this Section 9 is not exclusive
of other indemnification rights arising under any bylaw, agreement, vote of directors or stockholders or otherwise, and shall inure
to the benefit of the heirs and legal representatives of such Indemnitee.
Section 9.4.
Fulfillment of Standard of Conduct
.
Any Indemnitee shall be deemed to have met the standard of conduct
required for such indemnification unless the contrary has been established by a final, non-appealable judgment by a court of competent
jurisdiction.
Section 9.5.
Indemnification Priority
.
As between the Corporation and affiliates of the Corporation
(other than its direct or indirect subsidiaries) who provide indemnification to the Indemnitees for their service to, or on behalf
of, the Corporation (collectively, the “
Affiliates Indemnitors
”) (i) the Corporation is the indemnitor of first
resort with respect to all claims indemnifiable pursuant to Section 9.1 against any such Indemnitee (i.e., the Corporation’s
obligations to such Indemnitees are primary and any obligation of any Affiliate Indemnitor to advance expenses or to provide indemnification
for the same loss or liability incurred by such Indemnitees is secondary), (ii) the Corporation shall be required to advance the
full amount of expenses incurred by any such Indemnitee and shall be liable for the full amount of all liability and loss suffered
by such Indemnitee (including, but not limited to, expenses (including, but not limited to, attorneys’ fees and expenses),
judgments, fines and amounts paid in settlement and reasonably incurred by such Indemnitee), without regard to any rights any such
Indemnitee may have against any Affiliate Indemnitor, and (iii) the Corporation irrevocably waives, relinquishes and releases each
Affiliate Indemnitor from any and all claims against such Affiliate Indemnitor for contribution, subrogation or any other recovery
of any kind in respect thereof. The Corporation shall indemnify each Affiliate Indemnitor directly for any amounts that such Affiliate
Indemnitor pays as indemnification or advancement on behalf of any such Indemnitee and for which such Indemnitee may be entitled
to indemnification from the Corporation pursuant to Section 9.1. No advancement or payment by any Affiliate Indemnitor on behalf
of any such Indemnitee with respect to any claim for which such Indemnitee has sought indemnification from the Corporation shall
affect the foregoing and the Affiliate Indemnitors shall be subrogated to the extent of such advancement or payment to all of the
rights of recovery of such Indemnitee against the Corporation.
