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UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
July 17, 2023
TESSCO
Technologies Incorporated
(Exact name of registrant as specified in
its charter)
| Delaware |
001-33938 |
52-0729657 |
| (State or other jurisdiction of
incorporation) |
(Commission File Number) |
(IRS Employer Identification
Number) |
11126 McCormick Road, Hunt Valley, Maryland 21031
(Address of principal executive offices)
(Zip Code)
(410) 229-1000
(Registrant’s telephone number, including
area code)
Not Applicable
(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 (see General Instruction A.2.
below):
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ 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, $0.01 par value per share |
TESS |
Nasdaq Global 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. ¨
Introductory Note
As previously reported in the Current Report on Form 8-K filed with the United States Securities and Exchange Commission (the “SEC”)
on April 12, 2023 (the “Prior 8-K”), TESSCO Technologies Incorporated, a Delaware corporation (“Tessco” or the
“Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated April 11, 2023, with Alliance
USAcqCo 2, Inc., a Delaware corporation (“Parent”), and Alliance USAcqCo 2 Merger Sub, Inc., a Delaware corporation (“Merger
Sub”), pursuant to which Tessco would be acquired by way of a merger with and into Merger Sub with Tessco surviving the merger and
becoming a wholly owned subsidiary of Parent (referred to as the “Merger”).
All capitalized terms used and not otherwise defined
in this Form 8-K have the meanings given to them in the Merger Agreement.
Item 1.01 Entry into a Material Definitive Agreement.
Upon the Effective Time of
the Merger, the Company entered into Amendment No. 5 (“Amendment No. 5”) to the Credit Agreement by and between TESSCO
Technologies Incorporated and the other Borrowers and Guarantors party thereto and Wells Fargo Bank, National Association, as
administrative agent for the lender group and as a lender. Amendment No. 5 amends and restates the terms of the Company’s
previously existing $80.0 million Revolving Credit Facility to increase the revolving credit facility to $105.0 million, on similar
but amended terms. The obligations under Amendment No. 5 are obligations of the post-merger Company, which is referred to herein and in the Merger Agreement as the “Surviving Corporation.”
Upon the Effective Time of the Merger, Tessco Incorporated
and Tessco Reno Holding LLC, each a subsidiary of the Company, became party by joinder to the Purchase and Sale Agreement dated as of
April 11, 2023, by and between Parent and New Mountain Net Lease Acquisition II Corporation, a Delaware corporation (“Buyer”),
pursuant to which the Hunt Valley, Maryland property owned by Tessco Incorporated and the Reno, Nevada property owned by Tessco Reno Holding
LLC, were acquired by Buyer (the “Purchase Agreement”) on July 17, 2023 in exchange for approximately $32.975 million, without
regard to the existing mortgages thereon.
In addition, concurrent with the acquisition
by Buyer of the Maryland property and Reno property, Tessco Incorporated and Buyer entered into a Lease Agreement in respect of each
property under which Tessco Incorporated leased each for at what the Company believes to be market rates (the “Leases”).
Together, the Purchase Agreement and Leases reflect a “sale/leaseback” transaction on generally typical terms. The
obligations under the Leases are obligations of Surviving Corporation.
Item 2.01 Completion of Acquisition or Disposition of Assets.
On July 17, 2023, the remaining conditions to the
Merger set forth in the Merger Agreement were satisfied, and pursuant to the terms of the Merger Agreement, Merger Sub merged with and
into the Company, with the Company surviving as a wholly owned subsidiary of Parent.
At the Effective Time of the Merger, as provided
in the Merger Agreement, each share of common stock of the Company, par value $0.01 (the “common stock”), then outstanding
was converted into the right to receive $9.00 in cash, without interest (the “Merger Consideration”), other than those shares
owned by Parent, the Company or any subsidiary of Parent or the Company (which were cancelled without any consideration), and any shares
as to which appraisal rights have been perfected (and not withdrawn or lost) in accordance with applicable Delaware law (which were
cancelled and converted into the right to receive a payment determined in accordance with the Delaware law).
In addition,
· Each outstanding Company stock option, to the extent vested after giving effect to any terms of the applicable award agreement
providing for the full or partial acceleration of vesting of that option, was cancelled and converted into the right to receive an amount
in cash, without interest, equal to the excess, if any, of the Merger Consideration over the per-share exercise price applicable to that
Company stock option, multiplied by the total number of shares subject to that Company stock option. So-called “underwater”
or out-of-the-money options, where the per-share exercise price was equal to or more than the Merger Consideration, and the unvested portion
of any option, were cancelled without consideration;
· Each outstanding and vested restricted stock, restricted stock unit and performance stock award was cancelled in exchange for an
amount in cash equal to the Merger Consideration multiplied by the number of shares of common stock subject to these awards at the Effective
Time, after giving effect to any terms of the applicable award agreement providing for the full or partial acceleration of the vesting
of these awards in connection with the Merger, and each unvested and outstanding award of restricted stock, restricted stock units and
the performance stock award was cancelled; and
· Any
payments in respect of these stock options and other equity awards are subject to any applicable withholding tax.
The foregoing description of the Merger Agreement
is not complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 to the
Prior 8-K.
The information set forth in the second paragraph
of Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference into this Item 2.01.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation
under an Off-balance Sheet Arrangement of a Registrant.
The information required by this Item 2.03 is set forth in Item 1.01 of this Current Report on Form 8-K and is incorporated herein by
reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued
Listing Rule or Standard; Transfer of Listing.
On July 17, 2023, the Company notified the
Nasdaq Stock Market LLC (“Nasdaq”) of the consummation of the Merger and requested that Nasdaq file with the SEC a
notification on Form 25 to delist and deregister the common stock under Section 12(b) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”). Nasdaq filed the Form 25 with the SEC on behalf of the Company on July 17, 2023. The
Company’s common stock was suspended from trading on the Nasdaq Stock Market after the close of trading on July 17, 2023. In
approximately ten (10) days after filing of the Form 25, the Company intends to file with the SEC a Form 15 under the Exchange Act
requesting the deregistration of the common stock under Section 12(g) of the Exchange Act, and the suspension of the Company’s
reporting obligations under Section 13 and 15(d) of the Exchange Act.
Item 3.03 Material Modification to Rights of Security Holders.
The information required by this Item 3.03 is set forth under the Introductory Note, Item 2.01, Item 3.01, Item 5.01, and Item 5.03 of
this Current Report on Form 8-K and is incorporated herein by reference.
Item 5.01 Changes in Control of Registrant.
The information required by this Item 5.01 is set
forth under Item 2.01 and is incorporated herein by reference.
As a result of the consummation of the Merger and
effective as of the Effective Time, there was a change in control of the Company, and the Company became a wholly owned subsidiary of
Parent.
Item 5.02 Departure of Directors or Certain Officers; Election
of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
In connection with the consummation of the
Merger, each of J. Timothy Bryan, Matthew W. Brewer, Steven T. Campbell, Stephanie Dismore, Kathleen McLean, Vernon Irvin, and
Sandip Mukerjee, comprising all of the members of the Board of Directors of the Company (the “Board”) immediately
prior to the Effective Time, resigned from the Board and from all Board committees on which these directors served. These
resignations were required under the term of the Merger Agreement and were not a result of any disagreement between the Company and
any director on any matter relating to the Company’s operations, policies, or practices.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
Pursuant to the terms of the Merger Agreement,
as of the Effective Time, the Company’s Certificate of Incorporation, as in effect immediately prior to the Effective Time, was
amended and restated in its entirety (the “Amended and Restated Certificate of Incorporation”). In addition, pursuant to the
terms of the Merger Agreement, at the Effective Time, the Company’s bylaws, as in effect immediately prior to the Effective Time,
were amended and restated in their entirety (the “Amended and Restated Bylaws”).
Copies of the Amended and Restated Certificate
of Incorporation and the Amended and Restated Bylaws are filed as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K,
and are incorporated herein by reference.
Item 8.01. Other Events
On July 17, 2023, the Company issued a press
release announcing that the Merger had closed. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated
herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
*Schedules have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. The Company hereby undertakes to furnish supplementally copies of any of the omitted schedules upon request by the U.S.
Securities and Exchange Commission; provided, however, that the Company may request confidential treatment pursuant to Rule 24b-2
of the Securities Exchange Act of 1934, as amended, for any schedules so furnished.
SIGNATURES
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.
| TESSCO Technologies Incorporated |
|
| |
|
| By: |
/s/ Aric Spitulnik |
|
| |
Aric Spitulnik |
|
| |
Senior Vice President and CFO |
|
| |
|
| Dated: July 18, 2023 |
|
Exhibit 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TESSCO TECHNOLOGIES INCORPORATED
FIRST: The name of the corporation is
TESSCO Technologies Incorporated (the "Corporation").
SECOND: The
address of the Corporation's registered office in the State of Delaware is Corporation Service Company, 251 Little Falls Drive, City
of Wilmington, County of New Castle, Delaware 19808. The name of its registered agent at such address is Corporation Service
Company.
THIRD: The purpose
or purposes of the Corporation shall be to engage in any lawful acts or activities for which corporations may be organized under the DGCL.
FOURTH: The
total number of shares of stock which the Corporation is authorized to issue is One Hundred (100) shares of common stock, $0.01 par
value per share ("Common Stock"). The number of authorized shares of Common Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) from time to time by the affirmative vote of the holders of at least a
majority of the voting power of the Corporation's then outstanding shares of stocked entitled to vote thereon, voting together as a
single class, irrespective of the provisions of Sections 242(b)(2) of the DGCL (or any successor provision thereto), and no
vote of the holders of any Common Stock voting separately as a class shall be required therefor.
FIFTH: In
furtherance and not in limitation of the powers conferred by law, subject to any limitations contained in this Second Amended and
Restated Certificate of Incorporation, bylaws of the Corporation may be adopted, amended or repealed by a majority of the Board of
Directors of the Corporation (the "Board of Directors"), but any bylaws adopted by the Board of Directors may be
amended or repealed by the stockholders entitled to vote thereon. Election of directors need not be by written ballot.
SIXTH: In
addition to the powers and authority herein before or by statute expressly conferred upon them, the Board of Directors is hereby
empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the
provisions of the DGCL, this Second Amended and Restated Certificate of Incorporation and the bylaws of the Corporation.
SEVENTH: The
number of directors of the Corporation shall be fixed from time to time by the bylaws or amendment thereof adopted by the Board of
Directors.
EIGHTH:
To the fullest extent permitted by law, a director or officer of the Corporation shall
not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or
officer. If the DGCL or any other law of the State ofDelaware is amended after approval by the stockholders of this
Article Eighth to authorize corporate action further eliminating or limiting the personal liability of directors or officers,
then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the
General Corporation Law as so amended. Any repeal or modification of the foregoing provisions of this Article Eighth by the
stockholders of the Corporation shall not adversely affect any right or protection of a director or officer of the Corporation
existing at the time of, or increase the liability of any director or officer of the Corporation with respect to any acts or
omissions of such director occurring prior to, such repeal or modification.
NINTH: The
following indemnification provisions shall apply to the persons enumerated below.
1. Right
to Indemnification of Directors and Officers. The Corporation shall indemnify and hold harmless, to the fullest extent permitted
by applicable law as it presently exists or may hereafter be amended, any person (an "Indemnified Person") 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 such person, or a person for whom such person is the legal
representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture,
limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorneys' fees) reasonably incurred by such Indemnified Person in such Proceeding.
Notwithstanding the preceding sentence, except as otherwise provided in Section 3 of this Article Ninth, the Corporation shall
be required to indemnify an Indemnified Person in connection with a Proceeding (or part thereof) commenced by such Indemnified Person
only if the commencement of such Proceeding (or part thereof) by the Indemnified Person was authorized in advance by the Board of Directors.
2. Prepayment
of Expenses of Directors and Officers. The Corporation shall pay the expenses (including attorneys' fees) incurred by an Indemnified
Person in defending any Proceeding in advance of its final disposition, provided, however, that, to the extent required by law,
such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the
Indemnified Person to repay all amounts advanced if it should be ultimately determined that the Indemnified Person is not entitled to
be indemnified under this Article Ninth or otherwise.
3. Claims
by Directors and Officers. If a claim for indemnification or advancement of expenses under this Article Ninth is not paid in
full within 30 days after a written claim therefor by the Indemnified Person has been received by the Corporation, the Indemnified Person
may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense
of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Indemnified Person is not entitled
to the requested indemnification or advancement of expenses under applicable law.
4. Indemnification
of Employees and Agents. The Corporation may indemnify and advance expenses to any person who was or is made or is threatened to
be made or is otherwise involved in any Proceeding by reason of the fact that such person, or a person for whom such person is the legal
representative, is or was an employee or agent of the Corporation or, while an employee or agent of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture,
limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorney's fees) reasonably incurred by such person in connection with such Proceeding.
The ultimate determination of entitlement to indemnification of persons who are non-director or officer employees or agents shall be
made in such manner as is determined by the Board of Directors in its sole discretion. Notwithstanding the foregoing sentence, the Corporation
shall not be required to indemnify a person in connection with a Proceeding initiated by such person if the Proceeding was not authorized
in advance by the Board of Directors.
5. Advancement
of Expenses of Employees and Agents. The Corporation may pay the expenses (including attorney's fees) incurred by an employee or
agent in defending any Proceeding in advance of its final disposition on such terms and conditions as may be determined by the Board
of Directors.
6. Non-Exclusivity
of Rights. The rights conferred on any person by this Article Ninth shall not be exclusive of any other rights which such person
may have or hereafter acquire under any statute, provision of this Second Amended and Restated Certificate of Incorporation, the Bylaws
or any agreement, or pursuant to a vote of stockholders or disinterested directors or otherwise. The Corporation acknowledges that certain
persons entitled to indemnification from the Corporation hereunder may have certain rights to certain rights to indemnification, advancement
of expenses and/or insurance provided by a stockholder of the Corporation or certain affiliates of such stockholder (collectively, the
"Secondary Indemnitors"). The Corporation hereby agrees (i) that it is the indemnitor of first resort (i.e., its
obligations to such persons are primary and any obligation of the Secondary Indemnitors to advance expenses or to provide indemnification
for the same expenses or liabilities incurred by such persons are secondary), (ii) that it shall be required to advance the full
amount of expenses incurred by such persons and shall be liable for the full amount of all expenses, judgments, penalties, fines and
amounts paid in settlement to the extent legally permitted and as required by this Second Amended and Restated Certificate of Incorporation
(or any other agreement between the Corporation and such person), without regard to any rights such person may have against the Secondary
Indemnitors, and (iii) that it irrevocably waives, relinquishes and releases the Secondary Indemnitors from any and all claims against
the Secondary Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The Corporation further
agrees that no advancement or payment by the Secondary Indemnitors on behalf of such person with respect to any claim for which such
person has sought indemnification from the Corporation shall affect the foregoing and the Secondary Indemnitors shall have a right of
contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such person against
the Corporation. The Corporation and such persons agree that the Secondary Indemnitors are express third party beneficiaries of the terms
of this Section 6.
7. Other
Indemnification. The Corporation's obligation, if any, to indemnify any person who was or is serving at its request as a director,
officer or employee of another corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise
shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, limited liability
company, joint venture, trust, organization or other enterprise.
8. Insurance.
The Board of Directors may, to the full extent permitted by applicable law as it presently exists, or may hereafter be amended from time
to time, authorize an appropriate officer or officers to purchase and maintain at the Corporation's expense insurance: (a) to indemnify
the Corporation for any obligation which it incurs as a result of the indemnification of directors, officers and employees under the
provisions of this Article Ninth; and (b) to indemnify or insure directors, officers and employees against liability in instances
in which they may not otherwise be indemnified by the Corporation under the provisions of this Article Ninth.
9. Amendment
or Repeal. Any repeal or modification of the foregoing provisions of this Article Ninth shall not adversely affect any right
or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. The
rights provided hereunder shall inure to the benefit of any Indemnified Person and such person's heirs, executors and administrators.
TENTH: The Corporation expressly elects not to be governed
by Section 203 of the DGCL.
ELEVENTH: To
the fullest extent permitted by Section 122(17) of the DGCL (or any successor provision thereto), the Corporation hereby renounces
any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, any business opportunities that
are presented to one or more of its officers, directors or stockholders, other than those officers, directors or stockholders who are
employees of the Corporation or its subsidiaries. No amendment or repeal of this Article Eleventh shall apply to or have any effect
on the liability or alleged liability of any officer, director or stockholder of the Corporation for or with respect to any opportunities
of which such officer, director or stockholder becomes aware prior to such amendment or repeal.
[The remainder of this page is intentionally
left blank.]
Exhibit 3.2
BYLAWS
OF
TESSCO TECHNOLOGIES INCORPORATED
(a Delaware corporation)
ARTICLE I
Stockholders
SECTION 1. Annual Meetings.
Unless directors are elected by written consent in lieu of an annual meeting as permitted by the Delaware General Corporation Law, as
it may be amended and supplemented from time to time (the “DGCL”), the annual meeting of stockholders for the election
of directors and for the transaction of such other business as may properly come before the meeting shall be held each year at such date
and time, within or without the State of Delaware, as the Board of Directors shall determine.
SECTION 2. Special Meetings.
Special meetings of stockholders for the transaction of such business as may properly come before the meeting or for any other purpose
or purposes may be called by order of the Board of Directors or by stockholders holding together at least a majority of all the shares
of the Corporation entitled to vote at the meeting, and shall be held at such date and time, within or without the State of Delaware,
as may be specified by such order. Whenever the directors shall fail to fix such place, the meeting shall be held at the principal executive
office of the Corporation.
SECTION 3. Notice of
Meetings. Written notice of all meetings of the stockholders, stating the place (if any), date and hour of the meeting, the place
within the city or other municipality or community at which the list of stockholders may be examined, and the means of remote communications,
if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, shall be mailed or delivered
(physically or electronically) to each stockholder entitled to notice of or to vote at such meeting not less than 10 nor more than 60
days prior to the meeting. Notice of any special meeting shall state in general terms the purpose or purposes for which the meeting is
to be held, and at such special meeting, only such business shall be conducted as shall be specified in the notice of meeting. Stockholders
may participate in any such meeting by means of a conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in meeting shall constitute presence at such meeting. Without
limiting the manner by which notice otherwise may be given effectively to stockholders, notice of meetings may be given to stockholders
by means of electronic transmission in accordance with applicable law. Notice of any meeting need not be given to any stockholder who
shall, either before or after the meeting, submit a waiver of notice or who shall attend such meeting, except when the stockholder attends
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. Any stockholder so waiving notice of the meeting shall be bound by the proceedings of the meeting in all respects
as if due notice thereof had been given.
SECTION 4. Stockholder
Lists. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every 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 and class 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, either at a place within the city where the meeting is to
be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected
by any stockholder who is present.
The stock ledger
shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the
books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.
SECTION 5. Quorum.
Except as otherwise provided by law or the Corporation’s Certificate of Incorporation, a quorum for the transaction of business
at any meeting of stockholders shall consist of the holders of record of a majority of the issued and outstanding shares of the capital
stock of the Corporation entitled to vote at the meeting, present in person or by proxy. At all meetings of the stockholders at which
a quorum is present, all matters, except as otherwise provided by law or the Certificate of Incorporation, shall be decided by the vote
of the holders of a majority of the shares entitled to vote thereat present in person or by proxy. If there be no such quorum, the holders
of a majority of such shares so present or represented may adjourn the meeting from time to time, without further notice, until a quorum
shall have been obtained. When a quorum is once present it is not broken by the subsequent withdrawal of any stockholder.
SECTION 6. Organization.
Meetings of stockholders shall be presided over by the Chairman, if any, or if none or in the Chairman’s absence, the President,
if any, or if none or in the President’s absence, a Vice-President, or, if none of the foregoing is present, by a chairman to be
chosen by the stockholders entitled to vote who are present in person or by proxy at the meeting. The Secretary of the Corporation, or
in the Secretary’s absence an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an
Assistant Secretary is present, the presiding officer of the meeting shall appoint any person present to act as secretary of the meeting.
SECTION 7. Voting; Proxies; Required Vote.
(a) At
each meeting of stockholders, every stockholder entitled to vote at such meeting shall be entitled to vote in person or by proxy
appointed by instrument in writing, subscribed by such stockholder or by such stockholder’s duly authorized attorney-in-fact
(but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period),
and, unless the Certificate of Incorporation provides otherwise, shall have one vote for each share of stock entitled to vote
registered in the name of such stockholder on the books of the Corporation on the applicable record date fixed pursuant to these
Bylaws. At all elections of directors the voting may but need not be by ballot and a plurality of the votes cast there shall elect
such directors. Except as otherwise required by law or the Certificate of Incorporation , any other action shall be authorized by
the vote of the majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject
matter.
(b) Any
action required or permitted to be taken at any meeting of stockholders may, except as otherwise required by law or the Certificate of
Incorporation, be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action
so taken, shall be signed by the holders of record of the issued and outstanding capital stock of the Corporation having not less than
the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote
thereon were present and voted, and the writing or writings are filed with the permanent records of the Corporation. Prompt notice of
the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have
not consented in writing.
SECTION 8. Inspectors.
The Board of Directors, in advance of any meeting, may, but need not, appoint one or more inspectors of election to act at the meeting
or any adjournment thereof. If an inspector or inspectors are not so appointed, the person presiding at the meeting may, but need not,
appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled
by an appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat. No person who is
a candidate for office at an election may serve as an inspector at such election. Each inspector, if any, before entering upon the discharge
of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality
and according to the best of his or her ability. The inspectors, if any, shall determine the number of shares of stock outstanding and
the voting power of each, the shares of stock represented at the meeting, the existence of a quorum, and the validity and effect of proxies,
and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes, ballots or consents, determine the result, and do such acts as are proper to conduct the election
or vote with fairness to all stockholders. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders,
the inspectors may consider such information as is permitted by applicable law. On request of the person presiding at the meeting, the
inspector or inspectors, if any, shall make a report in writing of any challenge, question or matter determined by such inspector or inspectors
and execute a certificate of any fact found by such inspector or inspectors.
SECTION 9. Written
Consent of Stockholders Without a Meeting. Any action to be taken at any annual or special meeting of stockholders may be taken
without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action to be so
taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be
delivered (physically or electronically) to the Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings
of stockholders are recorded. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written
consent shall, to the extent required by applicable law, be given to those stockholders who have not consented in writing, and who,
if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such
meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the
Corporation
SECTION 10. Remote Communication.
Stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication: (i) participate
in a meeting of stockholders; and (ii) be deemed present in person and vote at a meeting of stockholders, whether such meeting is
to be held at a designated place or solely by means of remote communication, provided that (A) the Corporation shall implement reasonable
measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder
or proxyholder, (B) the Corporation shall implement reasonable measures to provide such stockholders and proxy holders a reasonable
opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear
the proceedings of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxy holder votes
or takes other action at the meeting by means of remote communication, a record of such votes or other action shall be maintained by the
Corporation.
ARTICLE II
Board of Directors
SECTION 1. General Powers.
The business, property and affairs of the Corporation shall be managed by, or under the direction of, the Board of Directors. The Board
of Directors may adopt rules and procedures, not inconsistent with the Certificate of Incorporation, these Bylaws, or applicable
law, as it may deem proper for the conduct of its meetings and the management of the Corporation.
SECTION 2. Qualification; Number; Term;
Remuneration.
(a) Each
director shall be at least 18 years of age. A director need not be a stockholder, a citizen of the United States, or a resident of the
State of Delaware. The number of directors constituting the entire Board of Directors shall be three, or such greater or lesser number
as may be fixed from time to time by the Board of Directors, one of whom may be selected by the Board of Directors to be its Chairman.
The use of the phrase “entire Board of Directors” herein refers to the total number of directors which the Corporation would
have if there were no vacancies.
(b) Directors
who are elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created
directorships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or
until their earlier resignation or removal.
(c) (i) directors
may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance
at each meeting of the Board of Directors or a stated salary as director; (ii) no such payment shall preclude any director from serving
the Corporation in any other capacity and receiving compensation therefor; and (iii) members of special or standing committees may
be allowed like compensation for attending committee meetings.
SECTION 3. Quorum and
Manner of Voting. Except as otherwise provided by law, a majority of the entire Board of Directors shall constitute a quorum. A majority
of the directors present, whether or not a quorum is present, may adjourn a meeting from time to time to another time and place without
notice. The vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
Each director shall be entitled to one vote on exactly the matter presented to the Board of Directors for approval.
SECTION 4. Places of
Meetings. Meetings of the Board of Directors may be held at any place within or without the State of Delaware, as may from time to
time be fixed by resolution of the Board of Directors, or as may be specified in the notice of meeting, if any.
SECTION 5. Annual Meeting.
Following the annual meeting of stockholders, the newly elected Board of Directors shall meet for the purpose of the election of officers
and the transaction of such other business as may properly come before the meeting. Such meeting may be held without notice (other than
notice under these Bylaws) immediately after the annual meeting of stockholders at the same place at which such stockholders’ meeting
is held.
SECTION 6. Regular Meetings.
Regular meetings of the Board of Directors shall be held at such times and places as the Board of Directors shall determine from time
to time. Notice need not be given of regular meetings of the Board of Directors held at times and places fixed by resolution of the Board
of Directors and promptly communicated to all directors then in office.
SECTION 7. Special Meetings.
Special meetings of the Board of Directors shall be held whenever called by the Chairman of the Board, the President, or by a majority
of the directors then in office.
SECTION 8. Notice of
Meetings. Whenever required, notice of the place, date and time and the purpose or purposes of each meeting of the Board of Directors
shall be given to each director not less than two calendar days before the day of the meeting by mail, telephone, facsimile, e-mail or
by personal delivery.
SECTION 9. Meetings
by Means of Conference Telephone. Members of the Board of Directors, or any committee designated by the Board of Directors, may
participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communication
equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting
pursuant to this Section 9 shall constitute presence at such meeting.
SECTION 10. Organization.
At all meetings of the Board of Directors, the Chairman, if any, or if none or in the Chairman’s absence or inability to act the
President, or in the President’s absence or inability to act any Vice-President who is a member of the Board of Directors, or in
such Vice-President’s absence or inability to act a chairman chosen by the directors, shall preside. The Secretary of the Corporation
shall act as secretary at all meetings of the Board of Directors when present, and, in the Secretary’s absence, the presiding officer
may appoint any person to act as secretary.
SECTION 11. Resignation;
Removal. Any director may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt
thereof by the President or Secretary, unless otherwise specified in the resignationAny or all of the directors may be removed, with or
without cause, by the holders of a majority of the shares of stock outstanding and entitled to vote for the election of directors.
SECTION 12. Vacancies.
Unless otherwise provided in these Bylaws , vacancies on the Board of Directors, whether caused by resignation, death, disqualification,
removal, an increase in the authorized number of directors or otherwise, may be filled by the affirmative vote of a majority of the remaining
directors, although less than a quorum, or by a sole remaining director, or at a special meeting of the stockholders, by the holders of
shares entitled to vote for the election of directors.
SECTION 13. Action by
Written Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting
if all the directors consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of
Directors.
ARTICLE III
Committees
SECTION 1. Appointment.
From time to time the Board of Directors by a resolution adopted by a majority of the entire Board may appoint any committee or committees
for any purpose or purposes, to the extent lawful, which shall have powers as shall be determined and specified by the Board of Directors
in the resolution of appointment.
SECTION 2. Procedures,
Quorum and Manner of Acting. Each committee shall fix its own rules of procedure, and shall meet where and as provided by such
rules or by resolution of the Board of Directors. Except as otherwise provided by law, the presence of a majority of the then appointed
members of a committee shall constitute a quorum for the transaction of business by that committee, and in every case where a quorum is
present the affirmative vote of a majority of the members of the committee present shall be the act of the committee. Each committee shall
keep minutes of its proceedings, and actions taken by a committee shall be reported to the Board of Directors.
SECTION 3. Action by
Written Consent. Any action required or permitted to be taken at any meeting of any committee of the Board of Directors may be taken
without a meeting if all the members of the committee consent thereto in writing, and the writing or writings are filed with the minutes
of proceedings of the committee.
SECTION 4. Term; Termination.
In the event any person shall cease to be a director of the Corporation, such person shall simultaneously therewith cease to be a member
of any committee appointed by the Board of Directors.
ARTICLE IV
Officers
SECTION 1. Election
and Qualifications. The Board of Directors shall elect the officers of the Corporation, which shall include a President and a Secretary,
and may include, by election or appointment by the Board of Directors, a Treasurer, one or more Vice- Presidents (any one or more of whom
may be given an additional designation of rank or function), and such Assistant Secretaries, such Assistant Treasurers and such other
officers as the Board of Directors may from time to time deem proper. Each officer shall have such powers and duties as may be prescribed
by these Bylaws and as customarily and usually held and performed by like officers or corporations similar in organization and business
purposes to the Corporation or as may be assigned by the Board of Directors or the President. Any two or more offices may be held by the
same person.
SECTION 2. Term of Office
and Remuneration. The term of office of all officers shall be one year and until their respective successors have been elected and
qualified, but any officer may be removed from office, either with or without cause, at any time by the Board of Directors. Any vacancy
in any office arising from any cause may be filled for the unexpired portion of the term by the Board of Directors. The remuneration of
all officers of the Corporation may be fixed by the Board of Directors or in such manner as the Board of Directors shall provide.
SECTION 3. Resignation;
Removal. Any officer may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt
thereof by the President or Secretary, unless otherwise specified in the resignation. Any officer shall be subject to removal, with or
without cause, at any time by vote of a majority of the entire Board of Directors.
SECTION 4. Chairman
of the Board. The Chairman of the Board of Directors, if there be one, shall preside at all meetings of the Board of Directors and
shall have such other powers and duties as may from time to time be assigned by the Board of Directors.
SECTION 5. President.
The President shall have such duties as customarily pertain to that office and shall have such other powers and duties as may from time
to time be assigned by the Board of Directors. The President may appoint and remove assistant officers and other agents and employees; and may
execute and deliver in the name of the Corporation powers of attorney, contracts, bonds and other obligations and instruments. If the
Board of Directors has not elected a Chairman or in the absence or inability to act of the Chairman, the President shall exercise all
of the powers and discharge all of the duties of the Chairman. As between the Corporation and third parties, any action taken by the President
in the performance of the duties of the Chairman shall be conclusive evidence that there is no Chairman or that the Chairman is absent
or unable to act.
SECTION 6. Vice-President.
A Vice-President may execute and deliver in the name of the Corporation contracts and other obligations and instruments pertaining to
the regular course of the duties of said office, and shall have such other authority as from time to time may be assigned by the Board
of Directors or the President.
SECTION 7. Secretary.
The Secretary shall in general have all the duties incident to the office of Secretary and such other duties as may be assigned by the
Board of Directors or the President.
SECTION 8. Treasurer.
The Treasurer shall in general have all the duties incident to the office of Treasurer and such other duties as may be assigned by the
Board of Directors or the President.
SECTION 9. Assistant
Officers. Any assistant officer shall have such powers and duties of the officer such assistant officer assists as such officer or
the Board of Directors shall from time to time prescribe.
SECTION 10. Duties of
Officers May Be Delegated. In case any officer is absent, or for any other reason that the Board of Directors may deem sufficient,
the President or the Board of Directors may delegate for the time being the powers or duties of such officer to any other officer or to
any director.
ARTICLE V
Books and Records
SECTION 1. Location.
The books and records of the Corporation may be kept at such place or places within or outside the State of Delaware as the Board of Directors
or the respective officers in charge thereof may from time to time determine. The record books containing the names and addresses of all
stockholders, the number and class of shares of stock held by each and the dates when they respectively became the owners of record thereof
shall be kept by the Secretary as prescribed in these Bylaws and by such officer or agent as shall be designated by the Board of Directors.
SECTION 2. Addresses
of Stockholders. Notices of meetings and all other corporate notices may be delivered personally, electronically or mailed to each
stockholder at the stockholder’s address as it appears on the records of the Corporation.
SECTION 3. Fixing Date for Determination of Stockholders
of Record.
(a) In
order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors and which record date shall not be more than 60 nor less than 10 days before the date
of such meeting. If no record date is fixed by the Board of Directors, 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 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. 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.
(b) In
order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board
of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors and if no record date has been fixed by the Board of Directors, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required, shall
be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in this State, its principal place of business, or an officer or agent of the Corporation having
custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered
office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of
Directors and prior action by the Board of Directors is required by this article, the record date for determining stockholders entitled
to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors
adopts the resolution taking such prior action.
(c) In
order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted and if no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
ARTICLE VI
Certificates Representing Stock
SECTION 1. Certificates;
Signatures. The shares of the Corporation’s stock may be certificated or uncertificated, as provided under the DGCL, and
shall be entered in the books of the Corporation and registered as they are issued. Any certificates representing shares of stock
shall be in such form as shall be approved by the Board of Directors. Every holder of stock represented by certificates and upon
request every holder of uncertificated shares shall be entitled to have a certificate, signed by or in the name of the Corporation
by any two authorized officers of the Corporation, representing the number of shares registered in certificate form. Any and all
signatures on any such certificate may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or
registrar at the date of issue. The name of the holder of record of the shares represented thereby, with the number of such shares
and the date of issue, shall be entered on the books of the Corporation.
SECTION 2. Transfers
of Stock. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, shares
of capital stock shall be transferable on the books of the Corporation only by the holder of record thereof in person, or by a duly authorized
attorney, upon surrender and cancellation of certificates for a like number of shares, properly endorsed, and the payment of all taxes
due thereon.
SECTION 3. Fractional
Shares. The Corporation may, but shall not be required to, issue certificates for fractions of a share where necessary to effect authorized
transactions, or the Corporation may pay in cash the fair value of fractions of a share as of the time when those entitled to receive
such fractions are determined, or it may issue scrip in registered or bearer form over the manual or facsimile signature of an officer
of the Corporation or of its agent, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any
rights of a stockholder except as therein provided.
SECTION 4. Rules and
Regulations. The Board of Directors shall have power and authority to make all such rules and regulations as it may deem expedient
concerning the issue, transfer and registration of certificates representing shares of the Corporation.
SECTION 5. Lost, Stolen
or Destroyed Certificates. The Corporation may issue a new certificate of stock in place of any certificate, theretofore issued by
it, alleged to have been lost, stolen or destroyed, and the Board of Directors may require the owner of any lost, stolen or destroyed
certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that
may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of any such new certificate.
ARTICLE VII
Dividends
Subject always
to applicable law and the Certificate of Incorporation, the Board of Directors shall have full power to determine whether any, and,
if any, what part of any, funds legally available for the payment of dividends shall be declared as dividends and paid to
stockholders; the division of the whole or any part of such funds of the Corporation shall rest wholly within the lawful discretion
of the Board of Directors, and it shall not be required at any time, against such discretion, to divide or pay any part of such
funds among or to the stockholders as dividends or otherwise; and before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute
discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for such other purpose as the Board of Directors shall think conducive to the
interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was
created. Subject to applicable law and the Certificate of Incorporation, dividends upon the shares of capital stock of the
Corporation may be declared by the Board of Directors at any regular or special meeting of the Board of Directors. Dividends may be
paid in cash, in property, or in shares of the Corporation's capital stock, unless otherwise provided by applicable law or the
Certificate of Incorporation.
ARTICLE VIII
Ratification
Any transaction,
questioned in any lawsuit on the ground of lack of authority, defective or irregular execution, adverse interest of director, officer
or stockholder, non-disclosure, miscomputation, or the application of improper principles or practices of accounting, may be ratified
before or after judgment, by the Board of Directors or by the stockholders, and if so ratified shall have the same force and effect as
if the questioned transaction had been originally duly authorized. Such ratification shall be binding upon the Corporation and its stockholders
and shall constitute a bar to any claim or execution of any judgment in respect of such questioned transaction.
ARTICLE IX
Corporate Seal
The corporation may
have a corporate seal. The corporate seal shall have inscribed thereon the name of the Corporation and the year of its incorporation,
and shall be in such form and contain such other words and/or figures as the Board of Directors shall determine. The corporate seal may
be used by printing, engraving, lithographing, stamping or otherwise making, placing or affixing, or causing to be printed, engraved,
lithographed, stamped or otherwise made, placed or affixed, upon any paper or document, by any process whatsoever, an impression, facsimile
or other reproduction of said corporate seal, as may be prescribed by law, custom or by the Board of Directors.
ARTICLE X
Fiscal Year
The fiscal year of
the Corporation shall be fixed, and shall be subject to change, by the Board of Directors. Unless otherwise fixed by the Board of Directors,
the fiscal year of the Corporation shall end on December 31.
ARTICLE XI
Waiver of Notice
Whenever notice is
required to be given by these Bylaws or by the Certificate of Incorporation or by law, a written waiver thereof, signed by the person
or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
ARTICLE XII
Bank Accounts, Drafts, Contracts, Etc.
SECTION 1. Bank Accounts
and Drafts. In addition to such bank accounts as may be authorized by the Board of Directors, the primary financial officer or any
person designated by said primary financial officer, whether or not an employee of the Corporation, may authorize such bank accounts to
be opened or maintained in the name and on behalf of the Corporation as he may deem necessary or appropriate, payments from such bank
accounts to be made upon and according to the check of the Corporation in accordance with the written instructions of said primary financial
officer, or other person so designated by the President.
SECTION 2. Contracts.
The Board of Directors may authorize any person or persons, in the name and on behalf of the Corporation, to enter into or execute and
deliver any and all deeds, bonds, mortgages, contracts and other obligations or instruments, and such authority may be general or confined
to specific instances.
SECTION 3. Proxies;
Powers of Attorney; Other Instruments. The Chairman, the President or any other person designated by either of them shall have the
power and authority to execute and deliver proxies, powers of attorney and other instruments on behalf of the Corporation in connection
with the rights and powers incident to the ownership of stock by the Corporation. The Chairman, the President or any other person authorized
by proxy or power of attorney executed and delivered by either of them on behalf of the Corporation may attend and vote at any meeting
of stockholders of any company in which the Corporation may hold stock, and may exercise on behalf of the Corporation any and all of the
rights and powers incident to the ownership of such stock at any such meeting, or otherwise as specified in the proxy or power of attorney
so authorizing any such person. The Board of Directors, from time to time, may confer like powers upon any other person.
SECTION 4. Financial
Reports. The Board of Directors may appoint the primary financial officer or other fiscal officer and/or the Secretary or any other
officer to cause to be prepared and furnished to stockholders entitled thereto any special financial notice and/or financial statement,
as the case may be, which may be required by any provision of law.
ARTICLE XIII
Indemnification
SECTION 1. Right
to Indemnification of Directors and Officers. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by
applicable law as it presently exists or may hereafter be amended, any person (an “Indemnified Person”) 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 such person, or a person for whom such person is the
legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint
venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against
all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Indemnified Person in such
Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 3 of this Article XIII, the Corporation
shall be required to indemnify an Indemnified Person in connection with a Proceeding (or part thereof) commenced by such Indemnified Person
only if the commencement of such Proceeding (or part thereof) by the Indemnified Person was authorized in advance by the Board of Directors.
SECTION 2. Prepayment
of Expenses of Directors and Officers. The Corporation shall pay the expenses (including attorneys’ fees) incurred by an Indemnified
Person in defending any Proceeding in advance of its final disposition, provided, however, that, to the extent required
by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking
by the Indemnified Person to repay all amounts advanced if it should be ultimately determined that the Indemnified Person is not entitled
to be indemnified under this Article XIII or otherwise.
SECTION 3. Claims
by Directors and Officers. If a claim for indemnification or advancement of expenses under this Article XIII is not paid in full
within 30 days after a written claim therefor by the Indemnified Person has been received by the Corporation, the Indemnified Person may
file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense
of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Indemnified Person is not entitled
to the requested indemnification or advancement of expenses under applicable law.
SECTION 4. Indemnification
of Employees and Agents. The Corporation may indemnify and advance expenses to any person who was or is made or is threatened to be
made or is otherwise involved in any Proceeding by reason of the fact that such person, or a person for whom such person is the legal
representative, is or was an employee or agent of the Corporation or, while an employee or agent of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture,
limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all
liability and loss suffered and expenses (including attorney’s fees) reasonably incurred by such person in connection with such
Proceeding. The ultimate determination of entitlement to indemnification of persons who are non-director or officer employees or agents
shall be made in such manner as is determined by the Board of Directors in its sole discretion. Notwithstanding the foregoing sentence,
the Corporation shall not be required to indemnify a person in connection with a Proceeding initiated by such person if the Proceeding
was not authorized in advance by the Board of Directors.
SECTION 5. Advancement
of Expenses of Employees and Agents. The Corporation may pay the expenses (including attorney’s fees) incurred by an employee
or agent in defending any Proceeding in advance of its final disposition on such terms and conditions as may be determined by the Board
of Directors.
SECTION 6. Non-Exclusivity
of Rights. The rights conferred on any person by this Article XIII 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 Bylaws or any
agreement, or pursuant to a vote of stockholders or disinterested directors or otherwise. The Corporation acknowledges that certain
persons entitled to indemnification from the Corporation hereunder may have certain rights to indemnification, advancement of
expenses and/or insurance provided by a stockholder of the Corporation or certain affiliates of such stockholder (collectively, the
“Secondary Indemnitors”). The Corporation hereby agrees (i) that it is the indemnitor of first resort (i.e.,
its obligations to such persons are primary and any obligation of the Secondary Indemnitors to advance expenses or to provide
indemnification for the same expenses or liabilities incurred by such persons are secondary), (ii) that it shall be required to
advance the full amount of expenses incurred by such persons and shall be liable for the full amount of all expenses, judgments,
penalties, fines and amounts paid in settlement to the extent legally permitted and as required by these Bylaws (or any other
agreement between the Corporation and such person), without regard to any rights such person may have against the Secondary
Indemnitors, and (iii) that it irrevocably waives, relinquishes and releases the Secondary Indemnitors from any and all claims
against the Secondary Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. The
Corporation further agrees that no advancement or payment by the Secondary Indemnitors on behalf of such person with respect to any
claim for which such person has sought indemnification from the Corporation shall affect the foregoing and the Secondary Indemnitors
shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of
recovery of such person against the Corporation. The Corporation and such persons agree that the Secondary Indemnitors are express
third party beneficiaries of the terms of this Section 6.
SECTION 7. Other
Indemnification. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director,
officer or employee of another corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise
shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, limited liability
company, joint venture, trust, organization or other enterprise.
SECTION 8. Insurance.
The Board of Directors may, to the full extent permitted by applicable law as it presently exists, or may hereafter be amended from time
to time, authorize an appropriate officer or officers to purchase and maintain at the Corporation’s expense insurance: (i) to
indemnify the Corporation for any obligation which it incurs as a result of the indemnification of directors, officers and employees under
the provisions of this Article XIII and (ii) to indemnify or insure directors, officers and employees against liability in instances
in which they may not otherwise be indemnified by the Corporation under the provisions of this Article XIII.
SECTION 9. Amendment
or Repeal. Any repeal or modification of the foregoing provisions of this Article XIII shall not adversely affect any right or
protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. The rights
provided hereunder shall inure to the benefit of any Indemnified Person and such person’s heirs, executors and administrators.
ARTICLE XIV
Amendments
The Board of Directors
shall have the power to adopt, amend or repeal these Bylaws. Bylaws adopted by the Board of Directors may be repealed or changed, and
new Bylaws made, by the stockholders, and the stockholders may prescribe that any Bylaw made by them shall not be altered, amended or
repealed by the Board of Directors.
ARTICLE XV
Exclusive Jurisdiction
Unless the
Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if the
Court of Chancery does not have jurisdiction, the federal district court for the District 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 for breach of a fiduciary duty owed by any director, officer, employee or agent of the Corporation to the
Corporation or the Corporation's stockholders, (iii) any action asserting a claim arising pursuant to any provision of the
DGCL, the Certificate of Incorporation or these Bylaws, or (iv) any action asserting a claim governed by the internal affairs
doctrine; in each case subject to said court having personal jurisdiction over the indispensable parties named as defendants
therein. If any action the subject matter of which is within the scope of this Article XV is filed in a court other than a
court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder
shall be deemed to have consented to: (x) the personal jurisdiction of the state and federal courts located within the State of
Delaware in connection with any action brought in any such court to enforce this Article XV (an “Enforcement
Action”), and (y) having service of process made upon such stockholder in any such Enforcement Action by service upon
such stockholder’s counsel in the Foreign Action as agent for such stockholder. 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 Article XV.
Exhibit 99.1
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Contacts
TESSCO Technologies
Incorporated
Aric Spitulnik
Chief Financial Officer
410-229-1419
spitulnik@tessco.com |
| |
|
| |
David Calusidian
Sharon Merrill Associates, Inc.
617-542-5300
TESS@investorrelations.com |
TESSCO
Announces Closing of Merger Transaction
TESSCO
Shareholders to Receive $9 Per Share in Cash in $160 Million Acquisition
July
16, 2023 3:13 PM Eastern Daylight Time
HUNT VALLEY, Md.--(BUSINESS
WIRE)--TESSCO TECHNOLOGIES INCORPORATED (“Tessco” or the “Company”) today announced the closing of its
previously announced merger with entities affiliated with Lee Equity Partners and Twin Point Capital, which also own Alliance Corporation
(“Alliance”), a value-added distributor of equipment for the wireless industry, and GetWireless, LLC (“GetWireless”),
a value-added distributor of cellular solutions that connect the Internet of Things (IoT). Tessco shareholders approved the transaction
at a special meeting of shareholders held on July 13, 2023. Under the terms of the merger, each share of Company common stock
outstanding prior to merger has been converted into the right to receive $9.00 in cash, reflecting a Company enterprise value of approximately
$160 million. As a result of the merger, Tessco common stock will cease trading on, and will be delisted from, the Nasdaq stock exchange.
As previously announced, Tessco will maintain
its facilities in Hunt Valley and Timonium, Maryland and in Reno, Nevada, and will broaden its facility footprint, product offering,
and value-added capabilities by partnering with Alliance and GetWireless to create a leading value-added telecommunications distributor
in North America.
William Blair & Company L.L.C. served
as Tessco’s exclusive financial advisor, and Ballard Spahr LLP served as the Company's legal counsel. Weil, Gotshal & Manges
LLP, DLA Piper LLP (US), and Harter Secrest & Emery LLP have served as legal counsel to Lee Equity Partners and Twin Point Capital.
About TESSCO Technologies Incorporated
TESSCO Technologies Incorporated is a value-added technology
distributor, manufacturer, and solutions provider serving commercial customers in the wireless infrastructure ecosystem. The Company
was founded more than 40 years ago with a commitment to deliver industry-leading products, knowledge, solutions, and customer service.
Tessco supplies products to the industry’s top manufacturers in mobile communications, Wi-Fi, Internet of Things (“IoT”),
wireless backhaul, and more. Tessco is a single source for outstanding customer experience, expert knowledge, and complete end-to-end
solutions for the wireless industry. For more information, visit www.tessco.com.
About Alliance Corporation
Alliance Corporation distributes equipment for wireless network
infrastructure, in-building signal enhancement solutions, cellular broadband systems, next generation 5G networks, fixed wireless and
private enterprise networks, as well as cellular solutions that connect the Internet of Things. Alliance provides pre- and post-sale
technical support, engineering, radio configuration and training services. Alliance serves telecommunication carriers, fixed wireless
broadband service providers, OEMs, systems integrators, resellers, and contractors in education, enterprise, federal government, military,
healthcare, industrial, municipal government, oil and gas, mining, public safety, security, utilities, and transportation industries.
Visit www.alliancecorporation.ca.
Alliance merged with GetWireless, LLC, a value-added distributor of
cellular solutions that connect the Internet of Things (IoT). Given its strategic portfolio of embedded modules, end-device modems, intelligent
gateways, and cellular boosters, GetWireless supplies the most advantageous cellular solutions for a broad array of IoT applications.
GetWireless enables mobile network operators, value-added resellers, integrators, and OEMs across a wide range of enterprise, industrial,
government, and SMB applications. Visit www.getwirelessllc.com.
About Lee Equity Partners
Lee Equity Partners, LLC is a New York-based private equity
firm that partners with successful management teams to build companies with strong growth potential. Lee Equity targets equity investments
of $50 million to $150 million in middle-market control buyouts and growth capital financings in companies with enterprise values of
$100 million to $500 million that are located primarily in North America. The firm invests within three distinct sectors, healthcare
services, financial services, and business services, where the team has developed deep relationships over decades. For more information,
visit www.LeeEquity.com.
About Twin Point Capital
Twin Point Capital is a New York-based principal investment
firm, which partners with outstanding management teams to build market leading companies. Twin Point’s portfolio includes investments
in the communications, technology and technology-enabled service industries.
Important Additional Information and Where to Find It
This communication relates to the merger involving Tessco
Technologies Incorporated. In connection with the merger, Tessco has filed with the Securities and Exchange Commission (the “SEC”)
preliminary and definitive proxy statements and other relevant documents. This communication is not a substitute for the proxy statement
or any other document filed by Tessco with the SEC or sent to its shareholders in connection with the merger. The proxy statement and
other documents filed by Tessco with the SEC may be obtained free of charge at the SEC’s website, www.sec.gov, or from Tessco
at the investor relations page of its website, ir.tessco.com/overview/default.aspx.
Contacts
TESSCO Technologies Incorporated
Aric Spitulnik
Chief Financial Officer
410-229-1419
spitulnik@tessco.com
David Calusidian
Sharon Merrill Associates, Inc.
617-542-5300
TESS@investorrelations.com
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