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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 16, 2024
BioCryst Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
000-23186 |
62-1413174 |
(State or Other Jurisdiction |
(Commission |
(IRS Employer |
of Incorporation) |
File Number) |
Identification No.) |
4505 Emperor Blvd., Suite 200
Durham, North Carolina 27703
(Address of Principal Executive Offices) (Zip Code)
(919) 859-1302
(Registrant’s telephone number, including area code)
________________________________________
(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading
Symbol(s) |
Name
of each exchange on which registered |
Common Stock |
BCRX |
Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined
in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2
of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use
the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a)
of the Exchange Act. ☐
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On January 16, 2024, the Board of Directors (the “Board”) of BioCryst Pharmaceuticals,
Inc. (the “Company” or “BioCryst”) approved and adopted Amended and Restated By-Laws of the Company (as so amended
and restated, the “By-Laws”), that became effective immediately. The amendments to the By-Laws include:
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updates to align with and conform to changes in the Delaware General Corporation Law (the “DGCL”), including, without limitation,
to (i) align the requirement regarding the availability of the stockholder list with DGCL Section 219 and (ii) clarify the manner in which
a meeting of stockholders (including a virtual meeting) may be adjourned without having to provide additional notice in accordance with
DGCL Section 222; |
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revisions to the procedures to be followed and information to be provided by stockholders giving notice of director nominations or of
certain other business proposed to be introduced at annual or special meetings of stockholders, including addressing information to be
provided in connection with solicitations subject to Rule 14a-19 promulgated under the Securities Exchange Act of 1934, as amended (i.e.,
“universal proxy card” rules), and by or with respect to the stockholder, any beneficial owner on whose behalf the notice
is provided, and any stockholder nominee(s); |
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a provision that the number of nominees that a stockholder may nominate may not exceed the number of directors to be elected and clarification
of the timing for providing notice of additional or substitute nominations; |
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revisions to require that a stockholder soliciting proxies from other stockholders use a proxy card color other than white; and |
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technical and conforming revisions and clarifications and other administrative changes. |
The foregoing summary is qualified in its entirety by reference to the full
text of the By-Laws, a copy of which is filed as Exhibit 3.1 hereto and incorporated in this Item 5.03 by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
The following exhibits are filed with this report:
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.
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BioCryst Pharmaceuticals, Inc. |
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Date: |
January 18, 2024 |
By: |
/s/ Alane Barnes |
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Name: Alane Barnes Title: Chief Legal Officer |
Exhibit 3.1
AMENDED AND RESTATED BY-LAWS
OF
BIOCRYST PHARMACEUTICALS,
INC.
Effective January 16, 2024
TABLE OF CONTENTS
Page
ARTICLE 1 – Stockholders |
1 |
1.1 Place of Meetings |
1 |
1.2 Annual Meeting |
1 |
1.3 Special Meetings |
1 |
1.4 Notice of Meetings |
1 |
1.5 Voting List |
2 |
1.6 Quorum |
2 |
1.7 Adjournments |
2 |
1.8 Voting and Proxies |
3 |
1.9 Action at Meeting |
3 |
1.10 Nominations and Other Stockholder Business. |
3 |
ARTICLE 2 – Directors |
9 |
2.1 General Powers |
9 |
2.2 Number; Election and Qualification |
9 |
2.3 Enlargement of the Board |
9 |
2.4 Tenure |
9 |
2.5 Vacancies |
10 |
2.6 Resignation |
10 |
2.7 Regular Meetings |
10 |
2.8 Special Meetings |
10 |
2.9 Notice of Special Meetings |
10 |
2.10 Meetings by Telephone Conference Calls |
10 |
2.11 Quorum |
10 |
2.12 Action at Meeting |
11 |
2.13 Action by Consent |
11 |
2.14 Removal |
11 |
2.15 Committees |
11 |
2.16 Chairman of the Board and Vice-Chairman of the Board |
11 |
2.17 Compensation of Directors |
12 |
ARTICLE 3 – Officers |
12 |
3.1 Enumeration |
12 |
3.2 Election |
12 |
3.3 Qualification |
12 |
3.4 Tenure |
12 |
3.5 Resignation and Removal |
12 |
3.6 Vacancies |
12 |
3.7 Reserved |
13 |
3.8 President, Chief Executive Officer |
13 |
3.9 Vice Presidents |
13 |
3.10 Secretary and Assistant Secretaries |
13 |
3.11 Treasurer and Assistant Treasurers |
13 |
3.12 Salaries |
14 |
ARTICLE 4 – Capital Stock |
14 |
4.1 Issuance of Stock |
14 |
|
4.2 Certificates of Stock |
14 |
4.3 Transfers |
14 |
4.4 Lost, Stolen or Destroyed Certificates |
15 |
4.5 Record Date |
15 |
ARTICLE 5 – Indemnification |
15 |
5.1 Indemnification of Directors and Officers |
15 |
5.2 Advancement of Expenses to Directors and Officers |
16 |
5.3 Procedure for Obtaining Indemnification and Advances |
16 |
5.4 Right to Bring Suit |
17 |
5.5 Non-exclusivity of Rights; Effect of Amendments |
17 |
5.6 Nature of Rights; Survivability |
18 |
5.7 Indemnification of Others |
18 |
5.8 Authority to Enter Into Indemnification Agreements |
18 |
5.9 Insurance |
18 |
5.10 Severability |
18 |
ARTICLE 6 – General Provisions |
18 |
6.1 Fiscal Year |
18 |
6.2 Corporate Seal |
18 |
6.3 Waiver of Notice |
19 |
6.4 Voting of Securities |
19 |
6.5 Evidence of Authority |
19 |
6.6 Certificate of Incorporation |
19 |
6.7 Transactions with Interested Parties |
19 |
6.8 Severability |
20 |
6.9 Pronouns |
20 |
ARTICLE 7 – Amendments |
20 |
7.1 By the Board of Directors |
20 |
7.2 By the Stockholders |
20 |
ARTICLE 8 – Forum for Adjudication of Certain Disputes |
20 |
8.1 Forum for Adjudication of Certain Disputes |
20 |
AMENDED AND RESTATED
BY-LAWS
OF
BIOCRYST PHARMACEUTICALS, INC.
Effective January 16, 2024
ARTICLE 1 – Stockholders
1.1 Place of Meetings. All meetings of stockholders shall be held at such
place, if any, within or without the State of Delaware as may be designated from time to time by the Board of Directors or the
President or, if not so designated, at the registered office of the corporation.
1.2 Annual
Meeting. The annual meeting of stockholders
for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held
on a date to be fixed by the Board of Directors or the President (which date shall not be a legal holiday in the place where the meeting
is to be held) at the time and place, if any, to be fixed by the Board of Directors or the President and stated in the notice of the
meeting. If no annual meeting is held in accordance with the foregoing provisions, the Board of Directors shall cause the meeting to
be held as soon thereafter as convenient. If no annual meeting is held in accordance with the foregoing provisions, a special meeting
may be held in lieu of the annual meeting, and any action taken at that special meeting shall have the same effect as if it had been
taken at the annual meeting, and in such case all references in these By- Laws to the annual meeting of the stockholders shall be deemed
to refer to such special meeting. The Board of Directors may postpone, reschedule or cancel any
annual meeting of stockholders previously scheduled by the Board of Directors or the President.
1.3 Special
Meetings. Special meetings of stockholders
of the corporation may be called only by the Board of Directors pursuant to a resolution approved by a majority of the entire Board of
Directors. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes
stated in the notice of meeting (or any supplement thereto). The Board of Directors may postpone, reschedule or cancel any special meeting
of stockholders previously scheduled by the Board of Directors.
1.4 Notice
of Meetings. Except as otherwise provided
by law, written notice of each meeting of stockholders, whether annual or special, shall be given
not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting.The notices
of all meetings shall state the place, if any, date and hour of the meeting of stockholders, the record date for the determination of
the stockholders entitled to vote at the meeting (if such date is different from the record date for determining the stockholders entitled
to notice of the meeting), and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be
present in person and vote at such meeting. The notice of a special meeting shall state, in addition, the purpose or purposes for which
the meeting is called. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the stockholder
at his address as it appears on the records of the corporation.
1.5 Voting
List. The officer who has charge of the stock ledger of the corporation shall
prepare, no later than the 10th day before each meeting of stockholders, a complete list of the stockholders entitled to vote at the
meeting, 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, for 10 days
ending on the day before the meeting date. Except as otherwise required by law, the stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the list of stockholders required by this Section 1.5 or to vote in person or by proxy
at any meeting of stockholders.
1.6 Quorum.
Except as otherwise provided by law, the Certificate of Incorporation or these By-Laws, the holders
of a majority of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at the meeting, present
in person or represented by proxy, shall constitute a quorum for the transaction of business. If a quorum is not present or represented
at any meeting of stockholders, then the chairman of the meeting, or holders of a majority of the shares of the capital stock of the
corporation issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall have power to
adjourn or recess the meeting from time to time in accordance with Section 1.7, until a quorum is present or represented. Subject
to applicable law, if a quorum initially is present at any meeting of stockholders, the stockholders may continue to transact business
until adjournment or recess, notwithstanding the withdrawal of enough stockholders to leave less than a quorum, but if a quorum is not
present at least initially, no business other than adjournment or recess may be transacted.
1.7 Adjournments.
Any meeting of stockholders may be adjourned to any other time and to any other place
at which a meeting of stockholders may be held under these By-Laws by the holders of a majority
of the shares of the capital stock of the corporation issued and outstanding and entitled to vote at the meeting, present in person or
represented by proxy, or by any officer entitled to preside at or to act as Secretary of such meeting. When
a meeting is adjourned to another time or place (including an adjournment taken to address a technical failure to convene or continue
a meeting using remote communication), notice need not be given of the adjourned meeting if the place, if any, date and time thereof,
and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote
at such adjourned meeting are: (a) announced at the meeting at which the adjournment is taken; (b) displayed, during the time scheduled
for the meeting, on the same electronic network used to enable stockholders and proxyholders to participate in the meeting by means of
remote communication; or (c) set forth in the notice of meeting given in accordance with Section 1.4;
provided, however, that if the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote
is fixed for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting in accordance
with Section 4.5. At the adjourned meeting, the corporation may transact any business which might have been transacted at the
original meeting.
1.8 Voting
and Proxies. Each stockholder shall have
one vote for each share of stock entitled to vote held of record by such stockholder and
a proportionate vote for each fractional share so held, unless otherwise provided in the Certificate of Incorporation. Each stockholder
of record entitled to vote at a meeting of stockholders may vote in person or may authorize another person or persons to vote or act
for him by written proxy executed by the stockholder or his authorized agent and delivered to the Secretary of the corporation. No such
proxy shall be voted or acted upon after three years from the date of its execution, unless the proxy expressly provides for a longer
period.
1.9 Action
at Meeting. When a quorum is present at
any meeting, the holders of a majority of the stock present or represented and voting on a matter (or if there are two or more classes
of stock entitled to vote as separate classes, then in the case of each such class, the holders of a majority of the stock of that class
present or represented and voting on a matter) shall decide any matter to be voted upon by the stockholders at such meeting, except when
a different vote is required by express provision of law, the Certificate of Incorporation or these By-Laws. Any election by stockholders
shall be determined by a plurality of the votes cast by the stockholders entitled to vote at the election.
1.10 Nominations
and Other Stockholder Business.
(i)
Nominations of persons for election to the Board of Directors of the corporation and the proposal
of business other than nominations to be considered by the stockholders may be made at an annual meeting of stockholders only (A) pursuant
to the corporation’s notice of meeting (or any supplement thereto), (B) by or at the direction of the Board of Directors or (C)
by any stockholder of the corporation who is a stockholder of record at the time the notice provided for in this Section 1.10(a) is delivered
to the Secretary of the corporation, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this
Section 1.10(a). For the avoidance of doubt, the foregoing clause (C) shall be the exclusive means for a stockholder to make nominations
or propose other business at an annual meeting of stockholders (other than a proposal included in the corporation’s proxy statement
pursuant to and in compliance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)).
(ii)
For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (C) of the
foregoing paragraph, the stockholder must have given timely notice thereof in writing to the Secretary of the corporation and such business
must be a proper subject for stockholder action. To be timely, a stockholder’s notice must be delivered to the Secretary at the
principal executive offices of the corporation not later than the close of business on the 90th day nor earlier than the close of business
on the 120th day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in
the event that the date of the annual meeting is more than 30 days before or after such anniversary date, notice by the stockholder to
be timely must be so delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than
the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the date on which public announcement
(as defined below) of the date of such meeting is first made by the corporation. In no event shall the public announcement of an adjournment
or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice
as described above. A stockholder’s notice given in accordance with this Section 1.10 must contain the names of only
the nominees for whom such stockholder (or beneficial owner, if any) intends to solicit proxies, and a stockholder shall not be entitled
to make additional or substitute nominations following the expiration of the time periods set forth in this Section 1.10(a); provided
that, in the event a stockholder’s notice includes one or more substitute nominees, such stockholder must provide timely notice
of such substitute nominee(s) in accordance with the provisions of this Section 1.10 (including, without limitation, satisfaction
of all applicable informational requirements set forth therein). For the avoidance of doubt, the number of nominees a stockholder may
nominate for election at the annual meeting (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number
of nominees a stockholder may nominate for election at the annual meeting on behalf of the beneficial owner) shall not exceed the number
of directors to be elected at such annual meeting. Such stockholder’s notice shall set forth:
(A)
as to each person whom the stockholder proposes to nominate for election or re-election as a director: (1) all information relating
to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act, (2) a written representation and agreement,
which shall be signed by such person and pursuant to which such person shall represent and agree that such person: (a) consents to
serving as a director if elected and to being named as a nominee in any proxy statement and form of proxy relating to the meeting at which
directors are to be elected, and currently intends to serve as a director for the full term for which such person is standing for election;
(b) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance
to, any person or entity: (i) as to how the person, if elected as a director, will act or vote on any issue or question that has
not been disclosed to the corporation; or (ii) that could limit or interfere with the person’s ability to comply, if elected
as a director, with such person’s fiduciary duties under applicable law; (c) is not and will not become a party to any agreement,
arrangement or understanding with any person or entity other than the corporation with respect to any direct or indirect compensation,
reimbursement or indemnification in connection with service or action as a director or nominee that has not been disclosed to the corporation;
and (d) if elected as a director, will comply with all of the corporation’s corporate governance policies and guidelines related
to conflict of interest, confidentiality, stock ownership and trading policies and guidelines, and any other policies and guidelines applicable
to directors (which will be promptly provided following a request therefor), and (3) all fully completed and signed questionnaires prepared
by the corporation, including those questionnaires required of the corporation’s directors and any other questionnaire the corporation
determines is necessary or advisable to assess whether a nominee will satisfy any qualifications or requirements imposed by the Certificate
of Incorporation or these By-Laws, any law, rule, regulation or listing standard that may be applicable to the corporation, and the corporation’s
corporate governance policies and guidelines (which questionnaires will be provided within 5 business days following a request therefor);
(B)
as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired
to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration
and in the event that such business includes a proposal to amend the By-Laws of the corporation, the language of the proposed amendment),
the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial
owner (within the meaning of Section 13(d) of the Exchange Act), if any, on whose behalf the business is being proposed;
(C)
as to the stockholder giving notice and the beneficial owner, if any, on whose behalf the nomination or other business is being
proposed: (1) the name and address of such stockholder, as they appear on the corporation’s books, and the name and address of such
beneficial owner, (2) the class and number of shares of capital stock of the corporation which are owned of record by such stockholder
and such beneficial owner as of the date of the notice, and the stockholder’s agreement to notify the corporation in writing within
5 business days after the record date for such meeting of the class and number of shares of capital stock of the corporation owned of
record by the stockholder and such beneficial owner as of the record date for the meeting, and (3) a representation that the stockholder
intends to appear in person or by proxy at the meeting to propose such nomination or other business;
(D) as to the stockholder giving the notice or, if the notice is given on behalf of a beneficial owner on whose behalf the nomination
is made or the other business is proposed, as to such beneficial owner, and if such stockholder or beneficial owner is an entity, as to
each individual who is a director, executive officer, general partner or managing member of such entity or of any other entity that has
or shares control of such entity (any such individual or entity, a “related person”): (1) the class and number of shares
of capital stock of the corporation which are beneficially owned by such stockholder, beneficial owner and any related person as of the
date of the notice, and the stockholder’s agreement to notify the corporation in writing within 5 business days after the record
date for such meeting of the class and number of shares of capital stock of the corporation beneficially owned by such stockholder, beneficial
owner or any related person as of the record date for the meeting, (2) a description of (a) any
plans or proposals which such stockholder, beneficial owner, if any, or related person may have with respect to securities of the corporation
that would be required to be disclosed pursuant to Item 4 of Exchange Act Schedule 13D and (b) any agreement, arrangement or understanding
with respect to the nomination or other business between or among such stockholder, beneficial owner, if any, or related person and any
other person, including without limitation any agreements that would be required to be disclosed pursuant to Item 5 or Item 6 of Exchange
Act Schedule 13D (in the case of either clause (a) or (b), regardless of whether the requirement to file a Schedule 13D is applicable
to the stockholder, beneficial owner or related person) and the stockholder’s agreement to notify the corporation in writing within
5 business days after the record date for such meeting of any such agreement, arrangement or understanding in effect as of the record
date for the meeting, (3) a description (which description shall include, in addition to all other information, information identifying
all parties thereto) of any agreement, arrangement or understanding (including warrant, forward contract, swap, contract of sale, or other
derivative or similar agreement or short positions, profit interests, options, hedging or pledging transactions, voting rights, dividend
rights, and/or borrowed or loaned shares), whether the instrument or agreement is to be settled with shares or with cash based on the
notional amount or value of outstanding shares of stock of the corporation, that has been entered into as of the date of the stockholder’s
notice by, or on behalf of, such stockholder, beneficial owner, if any, or related person, the effect or intent of which is to mitigate
loss, manage risk or benefit from changes in the share price of any class of the corporation’s capital stock, or maintain, increase
or decrease the voting power of the stockholder or beneficial owner with respect to shares of stock of the corporation, and the stockholder’s
agreement to notify the corporation in writing within 5 business days after the record date for such meeting of any such agreement, arrangement
or understanding in effect as of the record date for the meeting, and (4) any performance-related fees (other than an asset-based fee)
that such stockholder, beneficial owner, if any, or related person is directly or indirectly entitled to based on any increase or decrease
in the value of shares of the corporation or in any agreement, arrangement or understanding under clause (a)(ii)(D)(3) of this Section
1.10 and the stockholder’s agreement to notify the corporation in writing within 5 business days after the record date for such
meeting of any performance-related fees in effect as of the record date for the meeting;
(E)
a representation as to whether the stockholder, beneficial owner, if any, related person or any other participant (as defined in
Item 4 of Schedule 14A under the Exchange Act) will engage in a solicitation with respect to such nomination or proposal and, if so, whether
such solicitation will be conducted as an exempt solicitation under Rule 14a-2(b) of the Exchange Act, the name of each participant in
such solicitation and (1) in the case of a proposal of business other than nominations, whether such person or group intends to deliver
a proxy statement and form of proxy to holders of at least the percentage of the corporation’s voting shares required under applicable
law to carry the proposal, and/or (2) in the case of any solicitation that is subject to Rule 14a-19 of the Exchange Act, confirming that
such person or group will engage in such solicitation in accordance with Rule 14a-19 under the Exchange Act (for purposes of this clause
(E), the term “holders” shall include, in addition to stockholders of record, any beneficial owners pursuant to Rule 14b-1
and Rule 14b-2 of the Exchange Act); and
(F) a
representation that promptly after soliciting the holders of the corporation’s stock referred to in the representation required
under clause (a)(ii)(E) of this Section 1.10, and in any event no later than the 10th day before such meeting of stockholders,
such stockholder or beneficial owner will provide the corporation with documents, which may take the form of a certified statement and
documentation from a proxy solicitor, specifically demonstrating that the necessary steps have been taken to deliver a proxy statement
and form of proxy to holders of such percentage of the corporation’s stock.
The corporation may require any proposed nominee for
director to furnish such other information as the corporation may reasonably request, including information relevant to a determination
whether the proposed nominee can be considered an independent director. A stockholder providing notice pursuant to this Section 1.10 shall
update and supplement the information required to be provided in such notice pursuant to this Section 1.10 from time to time to the extent
necessary so that the information provided or required to be provided in such notice shall be true and correct as of the record date for
the meeting. Any such update and supplement shall be delivered in writing to the Secretary of the corporation at the principal executive
offices of the corporation not later than five days after the record date for the meeting. The obligation to update and supplement as
set forth in this Section 1.10 or any other section of these By-Laws shall not limit the corporation’s rights with
respect to any deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or under any other provision
of these By-Laws or enable or be deemed to permit a stockholder who has previously submitted notice hereunder or under any other provision
of these By-Laws to amend or update any nomination or other business proposal or to submit any new nomination or other business proposal,
including by changing or adding nominees, matters, business and or resolutions proposed to be brought before a meeting of stockholders.
Notwithstanding the foregoing, if any information or communication submitted pursuant to this Section 1.10 is inaccurate or incomplete
in any material respect (as determined by the Board of Directors (or any authorized committee thereof)) such information shall be deemed
not to have been provided in accordance with this Section 1.10. Notwithstanding anything in Section 1.10(a)(ii) or Section 1.10(b)
to the contrary, if the record date for determining the stockholders entitled to vote at any meeting of stockholders is different from
the record date for determining the stockholders entitled to notice of the meeting, a stockholder’s notice required by this Section
1.10 shall set forth a representation that the stockholder will notify the corporation in writing within 5 business days after the record
date for determining the stockholders entitled to vote at the meeting, or by the opening of business on the date of the meeting (whichever
is earlier), of the information required under this Section 1.10(a), and such information when provided to the corporation shall be current
as of the record date for determining the stockholders entitled to vote at the meeting.
The foregoing notice requirements of this Section 1.10(a)(ii)
shall not apply to a stockholder if the stockholder has notified the corporation of his or her intention to present a stockholder proposal
at an annual meeting only pursuant to and in compliance with Rule 14a-8 under the Exchange Act and such stockholder proposal has been
included in a proxy statement that has been prepared by the corporation to solicit proxies for such annual meeting.
(b)
Special Meeting. Only
such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the corporation’s
notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the corporation’s notice of meeting (A) by or at the direction of the Board of Directors
or (B) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the
corporation who is a stockholder of record at the time the notice provided for in this Section 1.10(b) is delivered to the Secretary of
the corporation, who is entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in
this Section 1.10. In the event the corporation calls a special meeting of stockholders for the purpose of electing one or more directors
to the Board of Directors, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the
case may be) for election to such position(s) as specified in the corporation’s notice of meeting, if the notice required by paragraph
(a)(ii) of this Section 1.10 shall be delivered to the Secretary at the principal executive offices of the corporation not earlier than
the close of business on the 90th day prior to such special meeting and not later than the close of business on the later of the 60th
day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special
meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement
of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s
notice as described above.
(c)
General.
(i)
Only such persons who are nominated in accordance with the procedures set forth in this Section
1.10 shall be eligible to be elected at an annual or special meeting of stockholders of the corporation to serve as directors and only
such other business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with
the procedures set forth in this Section 1.10. Notwithstanding any other provision of these By-Laws, a stockholder (and any beneficial
owner on whose behalf a nomination is made or other business is proposed, and if such stockholder or beneficial owner is an entity, any
related person) shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder
with respect to the matters set forth in this Section 1.10; provided, however, that any references in these By-Laws
to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable
to nominations or proposals as to any other business to be considered pursuant to this Section 1.10. Except as otherwise
provided by law, the Chairman of the Board, the chairman of the meeting, or any other person designated by the Board shall have the power
and duty to determine whether a nomination or other business proposed to be brought before the meeting was made or proposed, as the case
may be, in accordance with the procedures set forth in this Section 1.10 (including whether a stockholder or beneficial owner provided
all information and complied with all representations required under this Section 1.10 and/or complied with the requirements
of Rule 14a-19 under the Exchange Act). If any proposed nomination or other business was not made or proposed in compliance with this
Section 1.10, including due to a failure to comply with the requirements of Rule 14a-19 under the Exchange Act, the chairman of the meeting
shall declare that such nomination shall be disregarded or that such other business shall not be transacted, notwithstanding that proxies
and votes in respect of such matter may have been received by the corporation. In furtherance and not by way of limitation of the foregoing
provisions of this Section 1.10, unless otherwise required by law, if the stockholder does not provide the information required under
this Section 1.10 to the corporation within 5 business days following the record date for an annual or special meeting or if the stockholder
(or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the corporation
to present a nomination or other business, such nomination shall be disregarded and such other business shall not be transacted, notwithstanding
that proxies and votes in respect of such matter may have been received by the corporation. For purposes of this Section 1.10, to be
considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder
or authorized by a writing executed by such stockholder (or a reliable reproduction or electronic transmission of the writing) delivered
to the corporation prior to the making of such nomination or proposal of such other business at such meeting by such stockholder stating
that such person is authorized to act for such stockholder as proxy at the meeting of stockholders.
(ii)
For purposes of this Section 1.10, the “close of business” shall mean 6:00 p.m.
local time at the principal executive offices of the corporation on any calendar day, whether or not the day is a business day, and a
“public announcement” shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed by the corporation with
the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(iii)
Any stockholder directly or indirectly soliciting proxies from other stockholders must use
a proxy card color other than white, which shall be reserved for the exclusive use for solicitation by the Board of Directors.
ARTICLE 2 – Directors
2.1 General
Powers. The business and affairs of the corporation shall be
managed by or under the direction of a Board of Directors, who may exercise all of the powers of the corporation except as otherwise
provided by law or the Certificate of Incorporation. In the event of a vacancy in the Board of Directors, the remaining directors, except
as otherwise provided by law or the Certificate of Incorporation, may exercise the powers of the full Board until the vacancy is filled.
2.2 Number; Election and Qualification. Except as otherwise specified by
law or the Certificate of Incorporation: (a) the number of directors which shall constitute the whole Board of Directors shall
be determined by resolution of the Board of Directors, but in no event shall be less than six nor more than twelve persons; and (b) the
number of directors may be decreased at any time and from time to time within the minimum and maximum limitations by a majority of the
directors then in office, but only to eliminate vacancies existing by reason of the death, resignation, removal or expiration of the term
of one or more directors. The directors shall be elected at the annual meeting of stockholders by such stockholders as have the right
to vote on such election. Directors need not be stockholders of the corporation.
2.3 Enlargement
of the Board. Except as otherwise specified by law or the Certificate of Incorporation, the number
of directors may be increased at any time and from time to time by a majority of the directors then in office.
2.4 Tenure.
Each director shall hold office until his successor is elected and qualified, or until his earlier death, resignation or removal.
2.5 Vacancies.
Except as otherwise specified by law or the Certificate of Incorporation: (a) any vacancy in the Board of Directors, however occurring,
including a vacancy resulting from an enlargement of the Board, shall be filled by vote of a majority of the directors then in office,
although less than a quorum, or by a sole remaining director; and (b) a director elected to fill a vacancy or to fill a position resulting
from an increase in the number of directors shall hold office until the annual meeting of stockholders of the corporation at which the
term of the class of directors for which he has been chosen expires and until his successor is elected and qualified, or until his earlier
death, resignation or removal.
2.6 Resignation.
Any director may resign by delivering his written resignation to the corporation at its principal executive
offices or to the President or Secretary. Such resignation shall be effective upon delivery unless it is specified to be effective
at some later time or upon the happening of some other event.
2.7 Regular
Meetings. Regular meetings of the Board of Directors may be held
without notice at such time and place, either within or without the State of Delaware, as shall be determined from time to time by the
Board of Directors
2.8 Special
Meetings. Special meetings of the Board of Directors may be held
at any time and place, within or without the State of Delaware, designated in a call by the Chairman of the Board, President, two or
more directors, or by one director in the event that there is only a single director in office.
2.9 Notice
of Special Meetings. Notice of any special meeting of directors
shall be given to each director by the Secretary or by the officer or one of the directors calling the meeting. Notice shall be
duly given to each director (i) by giving notice to such director in person, by telephone
or by electronic transmission at least 48 hours in advance of the meeting, (ii) by delivering
written notice by hand to his last known business or home address at least 48 hours in advance
of the meeting, or (iii) by mailing written notice to his last known business or home address at least 72 hours in advance of the meeting.
A notice or waiver of notice of a meeting of the Board of Directors need not specify the purposes of the meeting.
2.10 Meetings
by Telephone Conference Calls. Directors or any members of any committee designated by the directors
may participate in a meeting of the Board of Directors or such committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence
in person at such meeting.
2.11 Quorum.
A majority of the total number of the whole Board of Directors shall constitute a quorum
at all meetings of the Board of Directors. In the event one or more of the directors shall be disqualified to vote at any meeting, then
the required quorum shall be reduced by one for each such director so disqualified; provided, however, that in no case
shall less than one-third (1/3) of the number so fixed constitute a quorum. In the absence of a quorum at any such meeting, a majority
of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until
a quorum shall be present.
2.12 Action
at Meeting. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority
of those present shall be sufficient to take any action, unless a different vote is specified by law, the Certificate of Incorporation
or these By-Laws.
2.13 Action
by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or
of any committee of the Board of Directors may be taken without a meeting, if all members of the Board or committee, as the case may
be, consent to the action in writing, by electronic transmission or by other form of communication then authorized by Delaware law, and
the written consents, electronic transmission or electronic transmissions or such other authorized forms of communication, are filed
with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper
form and shall be in electronic form if the minutes are maintained in electronic form.
2.14 Removal.
Except as otherwise provided by the General Corporation Law of Delaware or the Certificate of Incorporation, any one or more or all of
the directors may be removed, but only for cause, by the holders of a majority of the shares then entitled to vote at an election of
directors, except that the directors elected by the holders of a particular class or series of stock may be removed without cause only
by vote of the holders of a majority of the outstanding shares of such class or series.
2.15 Committees.
The Board of Directors may, by resolution passed by a majority of the whole Board, designate
one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.
In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors
to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution
of the Board of Directors or committee charter approved by the Board of Directors and subject to the provisions of the General Corporation
Law of the State of Delaware, shall have and may exercise all the powers and authority of the Board of Directors in the management of
the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers which may require
it. Each such committee shall keep minutes and make such reports as the Board of Directors may from time to time request. Except as the
Board of Directors may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided
by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these By-Laws
for the Board of Directors.
2.16 Chairman of the Board and Vice-Chairman of the Board. The Chairman of the Board shall preside
at meetings of the Board of Directors and shall perform such other duties and possess such powers as are assigned to him by the Board
of Directors. If the Board of Directors appoints a Vice-Chairman of the Board, he shall, in the absence or disability of the Chairman
of the Board, perform the duties and exercise the powers of the Chairman of the Board, except as otherwise provided by the Board, and
shall perform such other duties and possess such other powers as may from time to time be vested in him by the Board of Directors.
2.17 Compensation
of Directors. Directors may be paid such compensation for their services and such reimbursement for
expenses of attendance at meetings as the Board of Directors may from time to time determine.
ARTICLE 3 – Officers
3.1 Enumeration.
The officers of the corporation shall consist of a Chief Executive Officer, a President,
a Secretary, a Treasurer and such other officers with such other titles as the Board of Directors shall determine, including one or more
Vice Presidents, Assistant Treasurers, and Assistant Secretaries. The Board of Directors may appoint such other officers as it may deem
appropriate. In addition, the Board of Directors at any time and from time to time may authorize any officer of the corporation to appoint
one or more officers of the kind described in this article.
3.2 Election. The Chief Executive Officer, President, Treasurer and
Secretary shall be elected annually by the Board of Directors at its first meeting following the annual meeting of stockholders.
Other officers may be appointed by the Board of Directors at such meeting or at any other meeting.
3.3 Qualification.
No officer need be a stockholder. Any two or more offices may be held by the same person.
3.4 Tenure. Except as otherwise provided by
law, by the Certificate of Incorporation or by these By-Laws, each officer shall hold office until his successor is elected and
qualified, unless a different term is specified in the vote choosing or appointing him, or until his earlier death, resignation or
removal.
3.5 Resignation and Removal. Any officer may resign by delivering his written resignation to the
corporation at its principal executive offices or to the President or Secretary. Such resignation
shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some other event.
Any officer may be removed at any time, with or without
cause, by vote of a majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine,
no officer who resigns or is removed shall have any right to any compensation as an officer for any period following his resignation or
removal, or any right to damages on account of such removal, whether his compensation be by the month or by the year or otherwise, unless
such compensation is expressly provided in a duly authorized written agreement with the corporation.
3.6 Vacancies.
The Board of Directors may fill any vacancy occurring in any office for any reason and may,
in its discretion, leave unfilled for such period as it may determine any offices other than those of President, Treasurer and Secretary.
Each such successor shall hold office for the unexpired term of his predecessor and until his successor is elected and qualified, or
until his earlier death, resignation or removal.
3.7 Reserved.
3.8 President, Chief Executive Officer. The President shall, subject to the direction of the Board
of Directors, have general charge and supervision of the business of the corporation. Unless otherwise provided by the Board of Directors,
he shall preside at all meetings of the stockholders. Unless the Board of Directors has designated another officer as Chief Executive
Officer, the President shall be the Chief Executive Officer of the corporation. The President shall perform such other duties and shall
have such other powers as the Board of Directors may from time to time prescribe.
3.9 Vice
Presidents. Any Vice President shall perform such duties and possess such powers as the Board of Directors
or the President may from time to time prescribe. In the event of the absence, inability or refusal to act of the President, the Vice
President (or if there shall be more than one, the Vice Presidents in the order determined by the Board of Directors) shall perform the
duties of the President and when so performing shall have all the powers of and be subject to all the restrictions upon the President.
The Board of Directors may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title
selected by the Board of Directors.
3.10 Secretary
and Assistant Secretaries. The Secretary shall perform such duties
and shall have such powers as the Board of Directors or the President may from time to time prescribe. In addition, the Secretary shall
perform such duties and have such powers as are incident to the office of the secretary, including without limitation the duty and power
to give notices of all meetings of stockholders and special meetings of the Board of Directors, to attend all meetings of stockholders
and the Board of Directors and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their
addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the President or the Secretary may from time to time prescribe. In the event of the absence, inability or refusal
to act of the Secretary, the Assistant Secretary, (or if there shall be more than one, the Assistant Secretaries in the order determined
by the Board of Directors) shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the person presiding at the meeting shall designate a temporary secretary to keep a record of the meeting.
3.11 Treasurer
and Assistant Treasurers. The Treasurer shall perform such duties and shall have such powers as may
from time to time be assigned to him by the Board of Directors or the President. In addition, the Treasurer shall perform such duties
and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible
for all funds and securities of the corporation, to deposit funds of the corporation in depositories selected in accordance with these
By-Laws, to disburse such funds as ordered by the Board of Directors, to make proper accounts of such funds, and to render as required
by the Board of Directors statements of all such transactions and of the financial condition of the corporation.
The Assistant Treasurers shall perform such duties and possess such powers
as the Board of Directors, the President or the Treasurer may from time to time prescribe. In the event of the absence, inability or refusal
to act of the Treasurer, the Assistant Treasurer, (or if there shall be more than one, the Assistant Treasurers in the order determined
by the Board of Directors) shall perform the duties and exercise the powers of the Treasurer.
3.12 Salaries.
Officers of the corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
ARTICLE 4 – Capital Stock
4.1 Issuance
of Stock. Unless otherwise voted by the stockholders and subject to the provisions of the Certificate
of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the corporation or the whole or any
part of any unissued balance of the authorized capital stock of the corporation held in its treasury may be issued, sold, transferred
or otherwise disposed of by vote of the Board of Directors in such manner, for such consideration and on such terms as the Board of Directors
may determine.
4.2 Certificates
of Stock. Shares of the corporation may be certificated or uncertificated to the extent permitted by
Delaware law, in such form as may be prescribed by law and by the Board of Directors, certifying the number and class of shares owned
by a person in the corporation. Every holder of stock represented by certificates shall be entitled to have a certificate signed by,
or in the name of the corporation by, the Chairman or Vice- Chairman, if any, of the Board of Directors, or any
two authorized officers of the corporation, including, without limitation, the President, a Vice President, the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the corporation. Any or all of the signatures on the certificate may
be a facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, the By-Laws, applicable securities laws or any agreement among any number of
stockholders or among such holders and the corporation shall have conspicuously noted on the face or back of the certificate either the
full text of the restriction or a statement of the existence of such restriction.
4.3 Transfers.
Except as otherwise established by rules and regulations adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation, if such shares are certificated, by the surrender to the corporation or its
transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney
properly executed, with transfer stamps (if necessary) affixed or upon proper instructions from the holder of uncertificated shares,
in each case with such proof of authority or the authenticity of signature as the corporation or its transfer agent may reasonably require.
Except as may be otherwise required by law, by the Certificate of Incorporation or by these By-Laws, the corporation shall be entitled
to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends
and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares
have been transferred on the books of the corporation in accordance with the requirements of these By-Laws.
4.4 Lost,
Stolen or Destroyed Certificates. The corporation may issue a new certificate of stock or uncertificated
shares in place of any previously issued certificate alleged to have been lost, stolen, or destroyed, upon such terms and conditions
as the Board of Directors may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the
giving of such indemnity as the Board of Directors may require for the protection of the corporation or any transfer agent or registrar.
4.5 Record
Date. The Board of Directors may fix in advance a date as a record date for the determination of the
stockholders entitled to notice of or to vote at any meeting of stockholders or entitled to receive payment of any dividend or other
distribution or allotment of any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful
action. Except as otherwise required by law, such record date shall not be more than 60 nor less than 10 days before the date of such
meeting, nor more than 60 days prior to any other action to which such record date relates.
If no record date is fixed, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day before the day
on which notice is given, or, if notice is waived, at the close of business on the day before the day on which the meeting is held. If
no record date is fixed, the record date for determining stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights in respect of any change, conversion or exchange of stock, or for any other purpose shall be at the close of
business on the day on which the Board of Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that
the Board of Directors may fix a new record date for the adjourned meeting.
ARTICLE 5 – Indemnification
5.1 Indemnification
of Directors and Officers. The corporation shall, to the fullest extent permitted by Section 145 of
the General Corporation Law of Delaware, as amended from time to time, indemnify each person who was or is a party, or is threatened
to be made a party, to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that such person is or was, or has agreed to become, a
director or officer of the corporation, or is or was serving, or has agreed to serve, at the request of the corporation, as a director
or officer of the corporation, or is or was serving, or has agreed to serve, at the request of the corporation, as director, officer,
trustee, employee or agent of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise
(including any employee benefit plan), or by reason of any action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement, actually and reasonably incurred by such
person or on such person’s behalf in connection with such action, suit or proceeding and any appeal therefrom.
Except as provided in Section 5.4 below with respect
to proceedings to enforce rights to indemnification and advancement of expenses, the corporation shall not indemnify a director or officer
seeking indemnification in connection with an action, suit or proceeding (or part thereof) initiated by such director or officer unless
the initiation thereof was approved by the Board of Directors of the corporation.
5.2 Advancement
of Expenses to Directors and Officers. The corporation shall, to the fullest extent permitted by Section
145 of the General Corporation Law of Delaware, as amended from time to time, pay the expenses (including attorney’s fees) incurred
by a director or officer of the corporation in defending any action, suit or proceeding referred to in Section 5.1 above in advance of
the final disposition of such action, suit or proceeding upon receipt of an undertaking by the director or officer to repay all amounts
advanced if it is ultimately determined, after a final adjudication (including all appeals), that the director or officer is not entitled
to indemnification under Section 5.1 above or otherwise, which undertaking may be accepted without reference to the financial ability
of the director or officer to make such repayment.
5.3 Procedure
for Obtaining Indemnification and Advances. To receive indemnification under this Article 5, a director
or officer shall submit to the corporation a written request, which shall include documentation or information that is necessary to determine
the entitlement of the director or officer to indemnification and that is reasonably available to the director or officer. Upon receipt
by the corporation of a written request for indemnification, a determination, if required by the General Corporation Law of Delaware,
with respect to the request shall be made (i) by the Board of Directors, by a majority vote of directors who are not parties to the action,
suit or proceeding, even though less than a quorum, (ii) by a committee of such disinterested directors, designated by a majority vote
of the disinterested directors, (iii) if there are no disinterested directors, or if the disinterested directors so direct, by independent
legal counsel in a written opinion, or (iv) by the stockholders, with the shares owned by the director or officer not being entitled
to vote thereon. The determination of entitlement to indemnification shall be made, and such indemnification shall be paid in full, within
90 days after a written request for indemnification has been received by the corporation. To receive an advancement of expenses under
this Article 5, a director or officer shall submit to the corporation a written request, which shall reasonably evidence the expenses
incurred by the director or officer and shall include the undertaking referenced in Section 5.2 above. Expenses shall be paid in full
within 30 days after a written request for advancement has been received by the corporation. The burden of establishing that a director
or officer is not entitled to indemnification or advancement of expenses under this Article 5 or otherwise shall be on the corporation.
5.4 Right
to Bring Suit. If a claim for indemnification or advancement of expenses is not paid in full by the
corporation or on its behalf within the time frames specified in Section 5.3 above, the director or officer may at any time thereafter
bring suit against the corporation in a court of competent jurisdiction in the State of Delaware to recover the unpaid amount of the
claim. If successful in whole or in part in any such suit, or in a suit brought by the corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the director or officer shall also be entitled to be paid the expense of prosecuting or defending
such suit. In any suit brought by a director or officer to enforce a right to indemnification hereunder (but not in a suit brought by
the director or officer to enforce a right to advancement of expenses) it shall be a defense that the director or officer has not met
any applicable standard of conduct for indemnification set forth in the General Corporation Law of Delaware. In any suit brought by the
corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the corporation shall be entitled to recover
such expenses if it should ultimately be determined, after a final adjudication (including all appeals), that the director or officer
has not met any applicable standard of conduct for indemnification set forth in the General Corporation Law of Delaware. Neither the
failure of the corporation (including its directors who are not party to such suit, a committee of such directors, independent legal
counsel, or the corporation’s stockholders) to have made a determination prior to the commencement of such suit that indemnification
of the director or officer is proper in the circumstances because the director or officer has met any applicable standard of conduct
set forth in the General Corporation Law of Delaware, nor an actual determination by the corporation (including its directors who are
not party to such suit, a committee of such directors, independent legal counsel, or the corporation’s stockholders) prior to the
commencement of such suit that the director or officer has not met such applicable standard of conduct, shall create a presumption that
the director or officer has not met the applicable standard of conduct or is not entitled to indemnification or, in the case of such
a suit brought by the director or officer, shall be a defense to such suit. In any suit brought by a director or officer to enforce a
right to indemnification or to advancement of expenses hereunder, or brought by the corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the director or officer is not entitled to be indemnified, or to
such advancement of expenses, under this Article 5 or otherwise shall be on the corporation.
5.5 Non-exclusivity of Rights; Effect of Amendments. This Article 5 shall
create a right of indemnification and advancement for each person referred to in Sections 5.1 and 5.2 above, whether or not the
proceeding to which the indemnification or advancement relates arose in whole or in part prior to the adoption of this Article 5. The
rights conferred on any person by this Article 5 shall not be exclusive of any other rights which such person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, these By-Laws, agreement, vote of the stockholders or disinterested
directors or otherwise. The rights conferred on a director or officer by this Article 5 shall vest at the time the person becomes a director
or officer, and any repeal or modification of the provisions of this Article 5 shall not adversely affect any right or protection hereunder
of any director or officer in respect of any act or omission occurring prior to the time of such repeal or modification.
5.6 Nature
of Rights; Survivability. The rights conferred in this Article 5
shall be contract rights and such rights shall continue as to a person who has ceased to be a director or officer and shall inure
to the benefit of such person’s heirs, executors and administrators.
5.7 Indemnification
of Others. The corporation may, to the fullest extent permitted by Section 145 of the General Corporation
Law of Delaware, as amended from time to time, and to the extent authorized from time to time by the board of the directors, to grant
rights to indemnification and advancement of expenses to other employees or agents of the corporation or to other persons serving the
corporation (other than directors and officers).
5.8 Authority
to Enter Into Indemnification Agreements. The corporation shall
have the power to enter into agreements with any director, officer, employee or agent in furtherance
of the provisions of this Article 5 to provide for the payment of such amounts as may be appropriate, in the discretion of the board
of directors, to effect indemnification and advancement of expenses as provided in this Article 5.
5.9 Insurance.
The corporation may purchase and maintain insurance on behalf of any person who is or was
a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including
any employee benefit plan) against any liability asserted against him or her and incurred by him or her in any such capacity, or arising
out of his or her status as such, whether or not the corporation would have the power to indemnify him or her against such liability
under the provisions of the General Corporation Law of Delaware.
5.10 Severability.
If any provision or provisions of this Article 5 shall be held to be invalid, illegal or
unenforceable for any reason whatsoever (i) the validity, legality and enforceability of the remaining provisions of this Article 5 (including
without limitation, all portions of any paragraphs of this Article 5 containing any such provision held to be invalid, illegal or unenforceable,
that are not by themselves invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby, and (ii) to the fullest
extent possible, the provisions of this Article 5 (including, without limitation, all portions of any paragraph of this Article 5 containing
any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE 6 – General Provisions
6.1 Fiscal
Year. Except as from time to time otherwise designated by the
Board of Directors, the fiscal year of the corporation shall begin on the first day of January in each year and end on the last
day of December in each year.
6.2 Corporate
Seal. The corporate seal shall be in such form as shall be approved by the Board of Directors.
6.3 Waiver
of Notice. Whenever any notice whatsoever is required to be given
by law, by the Certificate of Incorporation or by these By-Laws, a waiver of such notice either in writing signed by the person entitled
to such notice, or by electronic transmission by the person entitled to such notice or any other form of communication then authorized
by Delaware law, whether before, at or after the time stated in such waiver, or the appearance of such person or persons at such meeting
in person or by proxy, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting
to the transaction of any business because the meeting is not lawfully called or convened, shall be deemed equivalent to such notice.
6.4 Voting
of Securities. Except as the Board of Directors may otherwise designate, the President or Treasurer
may waive notice of, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this corporation (with or
without power of substitution) at, any meeting of stockholders or shareholders of any other corporation or organization, the securities
of which may be held by this corporation.
6.5 Evidence
of Authority. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary,
as to any action taken by the stockholders, directors, a committee or any officer or representative of the corporation shall as to all
persons who rely on the certificate in good faith be conclusive evidence of such action.
6.6 Certificate
of Incorporation. All references in these By-Laws to the Certificate of Incorporation shall be deemed
to refer to the Certificate of Incorporation of the corporation, as amended and in effect from time to time.
6.7 Transactions
with Interested Parties. No contract or transaction between the
corporation and one or more of the directors or officers, or between the corporation and any other corporation, partnership, association,
or other organization in which one or more of the directors or officers are directors or officers, or have a financial interest, shall
be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of
the Board of Directors or a committee of the Board of Directors which authorizes the contract or transaction or solely because his or
their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of
a majority of the disinterested directors, even though the disinterested directors be less than a quorum;
(2) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or
(3)
The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the Board of Directors,
a committee of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
6.8 Severability. Any determination that any provision of
these By-Laws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these
By-Laws.
6.9 Pronouns.
All pronouns used in these By-Laws shall be deemed to refer to the masculine, feminine or
neuter, singular or plural, as the identity of the person or persons may require.
ARTICLE 7 – Amendments
7.1 By the Board of Directors. These By-Laws may be altered, amended or repealed or new by-laws
may be adopted by the affirmative vote of a majority of the directors present at any regular or special meeting of the Board of Directors
at which a quorum is present.
7.2 By
the Stockholders. These By-Laws may be altered, amended or repealed
or new by-laws may be adopted by the affirmative vote of the holders of a majority of the shares of the capital stock of the corporation
issued and outstanding and entitled to vote at any regular meeting of stockholders, or at any special meeting of stockholders, provided
notice of such alteration, amendment, repeal or adoption of new by-laws shall have been stated in the notice of such special meeting.
ARTICLE 8 – Forum for Adjudication of Certain Disputes
8.1 Forum
for Adjudication of Certain Disputes. Unless the corporation consents in writing to the selection of
an alternative forum (an “Alternative Forum Consent”), the Court of Chancery of the State of Delaware shall 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, stockholder, employee or agent of the corporation to the
corporation or the corporation’s stockholders, (iii) any action asserting a claim against the corporation or any director,
officer, stockholder, employee or agent of the corporation arising out of or relating to any provision of the General Corporation Law
of Delaware or the corporation’s Certificate of Incorporation or these By-Laws, or (iv) any action asserting a claim against
the corporation or any director, officer, stockholder, employee or agent of the corporation governed by the internal affairs doctrine
of the State of Delaware; provided, however, that, in the event that the Court of Chancery of the State
of Delaware lacks subject matter jurisdiction over any such action or proceeding, the sole and exclusive forum for such action or
proceeding shall be another state or federal court located within the State of Delaware, in each such case, unless the Court of Chancery
(or such other state or federal court located within the State of Delaware, as applicable) has dismissed a prior action by the same plaintiff
asserting the same claims because such court lacked personal jurisdiction over an indispensable party named as a defendant therein. Failure
to enforce the foregoing provisions would cause the corporation irreparable harm and the corporation shall be entitled to equitable relief,
including injunctive relief and specific performance, to enforce the foregoing provisions. Any person or entity purchasing or otherwise
acquiring any interest in shares of capital stock of the corporation shall be deemed to have notice of and consented to the provisions
of this Section 8.1. The existence of any prior Alternative Forum Consent shall not act as a waiver of the corporation’s ongoing
consent right as set forth above in this Section 8.1 with respect to any current or future actions or claims.
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