Purple Innovation, Inc 8-K, filed Dec 15, 2022
Purple Innovation, Inc. (PRPL)
About this 8-K
Purple Innovation, Inc filed this 8-K on December 15, 2022, reporting on events of December 12, 2022.
Items reported
- Item 5.03: Charter or bylaw amendment, or fiscal year change
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
(Exact Name of Registrant as Specified in its Charter)
| (State of Incorporation) | (Commission File Number) |
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area code: (
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
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| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| Pre-commencements 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:
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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 December 12, 2022, the Company amended and restated its bylaws in their entirety. The resulting Second Amended and Restated Bylaws are filed as Exhibit 3.1 to this Current Report on Form 8-K and are incorporated herein by reference.
Changes in the Second Amended and Restated Bylaws include, but are not limited to, clarifying the Board’s authority to postpone, reschedule, or cancel shareholder meetings, clarifying the powers of the Board and chair of shareholder meetings to regulate conduct at such meetings, adding a written questionnaire requirement for stockholder nominations, and adding a requirement that proposed shareholder nominees make themselves available for interviews by the Board upon request. The Second Amended and Restated Bylaws also update provisions relating to adjournment procedures and lists of shareholders entitled to vote at shareholder meetings to reflect recent amendments to the Delaware General Corporation Law and address new universal proxy rules by giving the Company additional flexibility, including by adding a requirement that the Company must disregard proxies for any dissident nominees if the dissident does not timely file its proxy statement and solicit two-thirds of the Company’s shareholders in accordance with universal proxy rules. In addition, the Second Amended and Restated Bylaws make minor conforming changes and updates, including changes in furtherance of gender-neutral terms.
The foregoing summary of the Amended and Restated Bylaws does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Amended and Restated Bylaws, a copy of which is attached as Exhibit 3.1 to this report and is incorporated by reference herein.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
EXHIBIT INDEX
| Exhibit Number |
Description | |
| 3.1 | Second Amended and Restated Bylaws | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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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.
| Dated: December 15, 2022 | PURPLE INNOVATION, INC. | |
| By: | /s/ Bennett Nussbaum | |
| Bennett Nussbaum | ||
| Interim Chief Financial Officer | ||
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Exhibit 3.1
SECOND AMENDED AND RESTATED BYLAWS
OF
PURPLE
INNOVATION, INC.
A DELAWARE CORPORATION
(THE “CORPORATION”) (FORMERLY KNOWN AS
GLOBAL PARTNER ACQUISITION CORP.)
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office of the Corporation within the State of Delaware shall be located at either (a) the principal place of business of the Corporation in the State of Delaware or (b) the office of the corporation or individual acting as the Corporation’s registered agent in Delaware.
Section 1.2. Additional Offices. The Corporation may, in addition to its registered office in the State of Delaware, have such other offices and places of business, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the “Board”) may from time to time determine or as the business and affairs of the Corporation may require.
ARTICLE II STOCKHOLDERS MEETINGS
Section 2.1. Annual Meetings. The annual meeting of stockholders shall be held at such place and time and on such date as shall be determined by the Board and stated in the notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(a). At each annual meeting, the stockholders shall elect those directors of the Corporation to fill any term of a directorship that expires on the date of such annual meeting and may transact any other business as may properly be brought before the meeting in accordance with these second amended and restated bylaws of the Corporation (as amended from time to time in accordance with the provisions hereof, these “Bylaws”). The Board may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board.
Section
2.2. Special Meetings. Subject to the rights of the holders of any outstanding series of the Preferred Stock, and to the requirements
of applicable law, special meetings of stockholders, for any purpose or purposes, may be called only by the ChairmanChair
of the Board, Chief Executive Officer, or the Board pursuant to a resolution adopted by a majority of the Board. Special meetings of stockholders
shall be held at such place and time and on such date as shall be determined by the Board and stated in the Corporation’s notice
of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may
instead be held solely by means of remote communication pursuant to Section 9.5(a). The Chair of the Board, the Chief Executive
Officer or the Board may, pursuant to a resolution adopted by a majority of the Board, postpone, reschedule or cancel any
special meeting of stockholders previously called by any of them.
Section 2.3. Notices. Notice of each stockholders meeting stating the place, if any, date, and time of the meeting, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, shall be given in the manner permitted by Section 9.3 to each stockholder entitled to vote thereat by the Corporation not less than 10 nor more than 60 days before the date of the meeting. If said notice is for a stockholders meeting other than an annual meeting, it shall in addition state the purpose or purposes for which the meeting is called, and the business transacted at such meeting shall be limited to the matters so stated in the Corporation’s notice of meeting (or any supplement thereto). Any meeting of stockholders as to which notice has been given may be postponed, and any special meeting of stockholders as to which notice has been given may be cancelled, by the Board upon public announcement (as defined in Section 2.7(c)) given before the date previously scheduled for such meeting.
Section
2.4. Quorum. Except as otherwise provided by applicable law, the Corporation’s Second Amended and Restated Certificate of Incorporation,
as the same may be amended or restated from time to time (the “Certificate of Incorporation”) or these Bylaws,
the presence, in person or by proxy, at a stockholders meeting of the holders of shares of outstanding capital stock of the Corporation
representing a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting
shall constitute a quorum for the transaction of business at such meeting, except that when specified business is to be voted on by a
class or series of stock voting as a class, the holders of shares representing a majority of the voting power of the outstanding shares
of such class or series shall constitute a quorum of such class or series for the transaction of such business. If a quorum shall not
be present or represented by proxy at any meeting of the stockholders of the Corporation, the chairmanchair
of the meeting may adjourn the meeting from time to time in the manner provided in Section 2.6 until a quorum shall attend. The
stockholders present at a duly convened meeting may continue to transact business until adjournment, notwithstanding the withdrawal of
enough stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation or to another corporation, if a
majority of the voting power of the shares entitled to vote in the election of directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing
shall not limit the right of the Corporation or any such other corporation to vote shares held by it in a fiduciary capacity.
Section 2.5. Voting of Shares.
(a) Voting Lists. The Secretary shall prepare,
or shall cause the officer or agent who has charge of the stock ledger of the Corporation to prepare, at least 10 days before every meeting
of stockholders of the Corporation, a complete list of the stockholders
of record entitled to vote at such meeting (provided,
however, that if the record date for determining the stockholders entitled to vote is less than 10 days before
the meeting date, the list shall reflect the stockholders entitled to vote as of the 10th day before the meeting date),
arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name
of each stockholder. Nothing contained in this Section 2.5(a) shall require the Corporation to include electronic mail addresses
or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours for a period of at least 10 days ending
on the day prior to the meeting date: (i) on a reasonably
accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the
meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation
determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information
is available only to stockholders of the Corporation. If the meeting is to be held at a place,
then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by
any stockholder who is present. If a meeting of stockholders is to be held solely by means of remote communication as permitted by
Section 9.5(a), the list shall be open to the examination of any stockholder during the whole time of
the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the
notice of meeting. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list required by
this Section 2.5(a) or to vote in person or by proxy at any meeting of stockholders.
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(b) Manner
of Voting. At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized by the Board,
the voting by stockholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot submitted by
electronic transmission (as defined in Section 9.3), provided that any such electronic transmission must either set forth or be
submitted with information from which the Corporation can determine that the electronic transmission was authorized by the stockholder
or proxy holder. The Board, in its discretion, or the chairmanchair
of the meeting of stockholders, in such person’s discretion, may require that any votes cast at such meeting shall be cast by written
ballot.
(c) Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed with the Secretary before being voted. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, either of the following shall constitute a valid means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by the stockholder or such stockholder’s authorized officer, director, employee or agent signing such writing or causing such person’s signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used; provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.
(d) Required Vote.
Subject to the rights of the holders of one or more series of preferred stock of the Corporation (“Preferred Stock”),
voting separately by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, the election
of directors shall be determined by a majority of the votes cast by the stockholders present in person or represented by proxy at the
meeting and entitled to vote thereon, provided, however, that if the number of nominees for director exceeds the number of directors
to be elected, directors shall be elected by a plurality of the votes cast by the stockholders present in person or represented by proxy
at the meeting and entitled to vote thereon. If, in an uncontested election, a director then serving on the Board does not receive
the required majority, the director shall tender his or her resignation to the Secretary of the Corporation promptly following certification
of the election results. The Nomination & Governance Committee (or other committee designated by the Board) shall consider the facts
and circumstances relating to the election and the resignation of such incumbent director and make a recommendation to the Board as to
whether to accept or reject the resignation, or whether other action should be taken. The Board will act on the Nomination & Governance
Committee’s recommendation and publicly disclose its decision and the rationale behind it within 90 days from the date of the certification
of the election results. All other matters shall also be determined by the vote
of a majority of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon,
unless the matter is one upon which, by applicable law, the Certificate of Incorporation, these Bylaws or applicable stock exchange rules,
a different vote is required, in which case such provision shall govern and control the decision of such matter.
(e) Inspectors
of Election. The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons as
inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such
meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board may appoint one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed by the Board,
the chairmanchair of the
meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The
inspectors shall ascertain and report the number of outstanding shares and the voting power of each; determine the number of shares present
in person or represented by proxy at the meeting and the validity of proxies and ballots; count all votes and ballots and report the results;
determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors;
and certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. No person
who is a candidate for an office at an election may serve as an inspector at such election. Each report of an inspector shall be in writing
and signed by the inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is more than
one inspector, the report of a majority shall be the report of the inspectors.
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Section 2.6. Adjournments.
Any meeting of stockholders, annual or special, may be adjourned by the chairmanchair
of the meeting, from time to time, whether or not there is a quorum, to reconvene at the same or some other place. Notice
need not be given of any such adjourned meeting (including an adjournment
taken to address a technical failure to convene or continue a meeting using remote communication)
if the date, time, and place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxy
holders may be deemed to be present in person or represented by proxy 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 proxy holders to participate in the meeting by means of remote communication or (c) set forth in the notice of meeting given
in accordance with these Bylaws. At the adjourned meeting the stockholders, or the holders of any class or series of stock entitled
to vote separately as a class, as the case may be, may transact any business that might have been transacted at the original meeting.
If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice
of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 2.7. Advance Notice for Business.
(a) Annual Meetings of Stockholders. No business may be transacted at an annual meeting of stockholders, other than business that is either (i) specified in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii) otherwise properly brought before the annual meeting by or at the direction of the Board or (iii) otherwise properly brought before the annual meeting by any stockholder of the Corporation (x) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.7(a) and on the record date for the determination of stockholders entitled to vote at such annual meeting and (y) who complies with the notice procedures set forth in this Section 2.7(a). Notwithstanding anything in this Section 2.7(a) to the contrary, only persons nominated for election as a director to fill any term of a directorship that expires on the date of the annual meeting pursuant to Section 3.3 will be considered for election at such meeting.
(i) In addition to any other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation and such business must otherwise be a proper matter for stockholder action. Subject to Section 2.7(a)(iii), a stockholder’s notice to the Secretary with respect to such business, to be timely, must be received by 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 opening of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for a date that is not within 45 days before or after such anniversary date, notice by the stockholder to be timely must be so received not earlier than the opening of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first made by the Corporation. The public announcement of an adjournment or recess of an annual meeting shall not commence a new time period for the giving of a stockholder’s notice as described in this Section 2.7(a).
(ii) To be in proper written form, a stockholder’s notice to the Secretary with respect to any business (other than nominations) must set forth as to each such matter such stockholder proposes to bring before the annual meeting (A) a brief description of the business desired to be brought before the annual meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event such business includes a proposal to amend these Bylaws, the language of the proposed amendment) and the reasons for conducting such business at the annual meeting, (B) the name and record address of such stockholder and the name and address of the beneficial owner, if any, on whose behalf the proposal is made, (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and by the beneficial owner, if any, on whose behalf the proposal is made, (D) a description of all arrangements or understandings between such stockholder and the beneficial owner, if any, on whose behalf the proposal is made and any other person or persons (including their names) in connection with the proposal of such business by such stockholder, (E) any material interest of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made in such business and (F) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.
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(iii) The foregoing notice
requirements of this Section 2.7(a) shall be deemed satisfied by a stockholder as to any proposal (other than nominations) if
the stockholder has notified the Corporation of such stockholder’s intention to present such proposal at an annual meeting in compliance
with Rule 14a-8 (or any successor thereof) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and such stockholder has complied with the requirements of such Rule for inclusion of such proposal in a proxy statement prepared by
the Corporation to solicit proxies for such annual meeting. No business shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting in accordance with the procedures set forth in this Section 2.7(a), provided, however,
that once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section
2.7(a) shall be deemed to preclude discussion by any stockholder of any such business. If the Board or the chairmanchair
of the annual meeting determines that any stockholder proposal was not made in accordance with the provisions of this Section
2.7(a) or that the information provided in a stockholder’s notice does not satisfy the information requirements of this Section
2.7(a), such proposal shall not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this Section
2.7(a), if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders
of the Corporation to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies in
respect of such matter may have been received by the Corporation.
(iv) In addition to the provisions of this Section 2.7(a), a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 2.7(a) shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(b) Special Meetings of Stockholders. 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 may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only pursuant to Section 3.3.
(c) Public Announcement. For purposes of these Bylaws, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or 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.
Section 2.8. Conduct of
Meetings. The chairmanchair
of each annual and special meeting of stockholders shall be the ChairmanChair
of the Board or, in the absence (or inability or refusal to act) of the ChairmanChair
of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to
act) of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be
a director) or, in the absence (or inability or refusal to act) of the President or if the President is not a director, such other person
as shall be appointed by the Board. The date and time of the opening and the closing of the polls for each matter upon which the stockholders
will vote at a meeting shall be announced at the meeting by the chairmanchair
of the meeting. The Board may adopt such rules and regulations for the conduct of the meeting of stockholders as it shall
deem appropriate. Except to the extent inconsistent with these Bylaws or such rules and regulations as adopted by the Board, the chairmanchair
of any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of such chairmanchair,
are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed
by the chairmanchair of
the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting;;
(b) rules and procedures for maintaining order at the meeting and the safety of those present;;
(c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized
and constituted proxies or such other persons as the chairmanchair
of the meeting shall determine;; (d) restrictions on entry to
the meeting after the time fixed for the commencement thereof;; and (e) limitations on the time
allotted to questions or comments by participants. The chair of a stockholder meeting shall, in a manner consistent with applicable
law and such rules and regulations as adopted by the Board, determine whether a matter of business was not properly brought before the
meeting in accordance with these Bylaws, and, if the chair should so determine, the chair shall so declare to the meeting and
any such matter of business not properly brought before the meeting shall not be transacted or considered. Unless and to the extent
determined by the Board or the chairmanchair
of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
The secretary of each annual and special meeting of stockholders shall be the Secretary or, in the absence (or inability or refusal to
act) of the Secretary, an Assistant Secretary so appointed to act by the chairmanchair
of the meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairmanchair
of the meeting may appoint any person to act as secretary of the meeting.
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Section 2.9. Consents in Lieu of Meeting. Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may 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 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 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. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.
No written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this section and Delaware Law to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in 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. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE III DIRECTORS
Section 3.1. Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws required to be exercised or done by the stockholders.
Section 3.2. Composition of the Board of Directors. The number of directors of the Corporation shall be as designated or as otherwise determined in the manner set forth in the Certificate of Incorporation. Directors need not be stockholders or residents of the State of Delaware. Unless changed by the unanimous vote of the entire Board, a majority of the members of the Board shall be comprised of “independent directors” as such term is defined in the corporate governance rules of the principal securities exchange upon which the securities of the Corporation may be listed from time to time or, if the securities of the Corporation shall cease to be listed on any national securities exchange, the corporate governance rules of the Nasdaq Capital Market.
Section 3.3. Advance Notice for Nomination of Directors.
(a) Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided by the terms of one or more series of Preferred Stock with respect to the rights of holders of one or more series of Preferred Stock to elect directors. Nominations of persons for election to the Board at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing directors as set forth in the Corporation’s notice of such special meeting, may be made (i) by or at the direction of the Board or a committee thereof or (ii) by any stockholder of the Corporation (x) who is a stockholder of record on the date of the giving of the notice provided for in this Section 3.3 and on the record date for the determination of stockholders entitled to vote at such meeting and (y) who complies with the notice procedures set forth in this Section 3.3.
(b) In
addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder’s notice to the
Secretary must be received by the Secretary at the principal executive offices of the Corporation (i) in the case of an annual
meeting, not later than the close of business on the 90th day nor earlier than the opening of business on the 120th day before the
anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within 45 days before or after such anniversary date, notice by the stockholder to be
timely must be so received not earlier than the opening of business on the 120th day before the meeting and not later than the later
of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on
which public announcement of the date of the annual meeting was first made by the Corporation; and (ii) in the case of a special
meeting of stockholders called for the purpose of electing directors, not later than the close of business on the 10th day following
the day on which public announcement of the date of the special meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment or recess of an annual meeting or special meeting commence a new time period
for the giving of a stockholder’s notice as described in this Section 3.3.
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(c) To be in proper written form, a stockholder’s notice to the Secretary must set forth
(i) as to each person whom the stockholder proposes to nominate for election as a director:
(A) the
name, age, business address and residence address of the personproposed
nominee,
(B) the principal occupation or employment of the person, (Cproposed nominee,
(C) a written questionnaire with respect to the background and qualifications of the proposed nominee, completed by the proposed nominee in the form required by the Corporation (which form such stockholder of record shall request in writing from the Secretary prior to submitting notice and which the Secretary shall provide to such stockholder of record (for the sole use of such stockholder of record) within 10 days after receiving such request),
(D) the class or series
and number of shares of capital stock of the Corporation that are owned beneficially or of record by the person and
(D,
(E) any other information
relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder;, and
(ii) as to the stockholder giving the notice:
(A) the name and record address of such stockholder and the name and address of the beneficial owner, if any, on whose behalf the nomination is made,
(B) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and the beneficial owner, if any, on whose behalf the nomination is made,
(C) a description of all arrangements or understandings relating to the nomination to be made by such stockholder among such stockholder, the beneficial owner, if any, on whose behalf the nomination is made, each proposed nominee and any other person or persons (including their names),
(D) a representation that such
stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and,
(E) any other information relating to such stockholder and the beneficial owner, if any, on whose behalf the nomination is made that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected, and
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(iii) a representation from such stockholder as to whether such stockholder or any person or entity who is a member of a “group” (as such term is used in Rule 13d-5 under the Exchange Act (or any successor provision at law)) with such stockholder intends or is part of a group that intends to (A) solicit proxies in support of the election of any proposed nominee in accordance with Rule 14a-19 under the Exchange Act or (B) engage in a solicitation (within the meaning of Exchange Act Rule 14a-1(l)) with respect to the nomination or other business, as applicable, and if so, the name of each participant (as defined in Item 4 of Schedule 14A under the Exchange Act) in such solicitation.
(d) If the Board or
the chairmanchair of the
meeting of stockholders determines that any nomination was not made in accordance with the provisions of this Section 3.3,
, then such nomination shall not be considered at the meeting in question. Notwithstanding the foregoing provisions
of this Section 3.3, if the stockholder (or a qualified representative of the stockholder) does not appear at the meeting of stockholders
of the Corporation to present the nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such nomination
may have been received by the Corporation.
(e
(e) If (A) any stockholder or any person or entity who is a member of a “group” (as such term is used in Rule 13d-5 under the Exchange Act (or any successor provision at law)) with such stockholder provides notice pursuant to Rule 14a-19(b) under the Exchange Act with respect to any proposed nominee and (B) such stockholder or person or entity who is a member of a “group” (as such term is used in Rule 13d-5 under the Exchange Act (or any successor provision at law)) with such stockholder subsequently (x) notifies the Corporation that such stockholder or person or entity who is a member of a “group” (as such term is used in Rule 13d-5 under the Exchange Act (or any successor provision at law)) with such stockholder no longer intends to solicit proxies in support of the election or reelection of such proposed nominee in accordance with Rule 14a-19(b) under the Exchange Act or (y) fails to comply with the requirements of Rule 14a-19(a)(2) or Rule 14a-19(a)(3) under the Exchange Act, then the Corporation shall disregard any proxies solicited for that proposed nominee. Upon request by the Corporation, if any stockholder provides notice pursuant to Rule 14a-19(b) under the Exchange Act, such stockholder shall deliver to the Secretary, no later than 5 business days prior to the applicable meeting date, reasonable evidence that the requirements of Rule 14a-19(a)(3) under the Exchange Act have been satisfied.
(f) Any stockholder proposing individuals to nominate for election or reelection as a director shall notify the Secretary within 2 business days of becoming aware that such stockholder or any person or entity who is a member of a “group” (as such term is used in Rule 13d-5 under the Exchange Act (or any successor provision at law)) with such stockholder no longer intends to solicit proxies in accordance with the representation made pursuant to Section 3.3(c)(iii) above.
(g) The Board may require any proposed nominee to submit to interviews with the Board or any committee thereof, and such proposed nominee shall make himself or herself available for any such interviews within 10 days following any reasonable request therefor from the Board or any committee thereof.
(h) In addition to the provisions of this Section 3.3, a stockholder shall also comply with all of the applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 3.3 shall be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the Certificate of Incorporation.
Section 3.4. Compensation. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board shall have the authority to fix the compensation of directors. The directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board and may be paid either a fixed sum for attendance at each meeting of the Board or other compensation as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees of the Board may be allowed like compensation and reimbursement of expenses for service on the committee.
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ARTICLE IV BOARD MEETINGS
Section 4.1. Annual Meetings. The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place of the annual stockholders meeting unless the Board shall fix another time and place and give notice thereof in the manner required herein for special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except as provided in this Section 4.1.
Section 4.2. Regular Meetings. Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places as shall from time to time be determined by the Board.
Section 4.3.
Special Meetings. Special meetings of the Board (a) may be called by the ChairmanChair
of the Board, Chief Executive Officer, or President and (b) shall be called by the ChairmanChair
of the Board, Chief Executive Officer, President or Secretary on the written request of at least a majority of directors then in
office, or the sole director, as the case may be, and shall be held at such time, date and place as may be determined by the person calling
the meeting or, if called upon the request of directors or the sole director, as specified in such written request. Notice of each special
meeting of the Board shall be given, as provided in Section 9.3, to each director (i) at least 24 hours before the meeting if such
notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of a form of electronic transmission
and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally recognized overnight delivery service;
and (iii) at least five days before the meeting if such notice is sent through the United States mail. If the Secretary shall fail or
refuse to give such notice, then the notice may be given by the officer who called the meeting or the directors who requested the meeting.
Any and all business that may be transacted at a regular meeting of the Board may be transacted at a special meeting. Except as may be
otherwise expressly provided by applicable law, the Certificate of Incorporation, or these Bylaws, neither the business to be transacted
at, nor the purpose of, any special meeting need be specified in the notice or waiver of notice of such meeting. A special meeting may
be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance
with Section 9.4.
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Section 4.4. Quorum; Required Vote. A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by applicable law, the Certificate of Incorporation or these Bylaws. If a quorum shall not be present at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
Section 4.5. Consent In Lieu of Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions (or paper reproductions thereof) 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.
Section
4.6. Organization. The chairmanchair
of each meeting of the Board shall be the ChairmanChair
of the Board or, in the absence (or inability or refusal to act) of the ChairmanChair
of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to act) of the
Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director) or in the
absence (or inability or refusal to act) of the President or if the President is not a director, a chairmanchair
elected from the directors present. The Secretary shall act as secretary of all meetings of the Board. In the absence (or inability or
refusal to act) of the Secretary, an Assistant Secretary shall perform the duties of the Secretary at such meeting. In the absence (or
inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairmanchair
of the meeting may appoint any person to act as secretary of the meeting.
ARTICLE V COMMITTEES OF DIRECTORS
Section 5.1. Establishment. The Board may by resolution passed by a majority of the Board designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when required. The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee.
Section 5.2. Available Powers. Any committee established pursuant to Section 5.1 hereof, to the extent permitted by applicable law and by resolution of the Board, shall have and may exercise all of the powers and authority of the Board 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 that may require it.
Section 5.3. Alternate Members. 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 such committee.
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Section 5.4. Procedures. Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by such committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate member, unless such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such meeting) shall constitute a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall be the act of the committee, except as otherwise specifically provided by applicable law, the Certificate of Incorporation, these Bylaws or the Board. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without notice other than an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and except as provided in these Bylaws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to conduct its business pursuant to Article III and Article IV of these Bylaws.
ARTICLE VI OFFICERS
Section
6.1. Officers. The officers of the Corporation elected by the Board shall be a ChairmanChair
of the Board, a Chief Executive Officer, a President, a Chief Financial Officer, a Secretary and such other officers (including without
limitation, Vice Presidents, Assistant Secretaries and a Treasurer) as the Board from time to time may determine. Officers elected by
the Board shall each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions
of this Article VI. Such officers shall also have such powers and duties as from time to time may be conferred by the Board. The
Chief Executive Officer or President may also appoint such other officers (including without limitation one or more Vice Presidents and
Controllers) as may be necessary or desirable for the conduct of the business of the Corporation. Such other officers shall have such
powers and duties and shall hold their offices for such terms as may be provided in these Bylaws or as may be prescribed by the Board
or, if such officer has been appointed by the Chief Executive Officer or President, as may be prescribed by the appointing officer.
(a) ChairmanChair of the Board. The ChairmanChair
of the Board shall preside when present at all meetings of the stockholders and the Board. The ChairmanChair
of the Board shall have general supervision and control of the acquisition activities of the Corporation subject to the ultimate authority
of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters. The Chair of the
Board shall have such other powers and duties as may from time to time be assigned by
the Board. In the absence (or inability or refusal to act) of the ChairmanChair
of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders
and the Board. The powers and duties of the ChairmanChair
of the Board shall not include supervision or control of the preparation of the financial statements of the Corporation (other than through
participation as a member of the Board). The position of ChairmanChair
of the Board and Chief Executive Officer may be held by the same person.
(b) Chief
Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision
of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board, and shall
be responsible for the execution of the policies of the Board with respect to such matters, except to the extent any such powers and duties
have been prescribed to the ChairmanChair
of the Board pursuant to Section 6.1(a) above. In the absence (or inability or refusal to act) of the ChairmanChair
of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders
and the Board. The position of Chief Executive Officer and President may be held by the same person.
(c) President.
The President shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved for
the final executive responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the ChairmanChair
of the Board and Chief Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings
of the stockholders and the Board. The President shall also perform such duties and have such powers as shall be designated by the Board.
The position of President and Chief Executive Officer may be held by the same person.
(d) Vice Presidents. In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President. Any one or more of the Vice Presidents may be given an additional designation of rank or function.
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(e) Secretary.
(i) The
Secretary shall attend all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings
of such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders
and special meetings of the Board and shall perform such other duties as may be prescribed by the Board, the ChairmanChair
of the Board, Chief Executive Officer or President. The Secretary shall have custody of the corporate seal of the Corporation and the
Secretary, or any Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed, it
may be attested by his or her signature or by the signature of such Assistant Secretary. The Board may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing thereof by his or her signature.
(ii) The Secretary shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s transfer agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders and their addresses, the number and classes of shares held by each and, with respect to certificated shares, the number and date of certificates issued for the same and the number and date of certificates cancelled.
(f) Assistant Secretaries. The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the Board shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g) Chief Financial Officer. The Chief Financial Officer shall perform all duties commonly incident to that office (including, without limitation, the care and custody of the funds and securities of the Corporation, which from time to time may come into the Chief Financial Officer’s hands and the deposit of the funds of the Corporation in such banks or trust companies as the Board, the Chief Executive Officer or the President may authorize).
(h) Treasurer. The Treasurer shall, in the absence (or inability or refusal to act) of the Chief Financial Officer, perform the duties and exercise the powers of the Chief Financial Officer.
Section 6.2. Term of Office; Removal; Vacancies. The elected officers of the Corporation shall be appointed by the Board and shall hold office until their successors are duly elected and qualified by the Board or until their earlier death, resignation, retirement, disqualification, or removal from office. Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by the Chief Executive Officer or President may also be removed, with or without cause, by the Chief Executive Officer or President, as the case may be, unless the Board otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled by the Board. Any vacancy occurring in any office appointed by the Chief Executive Officer or President may be filled by the Chief Executive Officer, or President, as the case may be, unless the Board then determines that such office shall thereupon be elected by the Board, in which case the Board shall elect such officer.
Section 6.3. Other Officers. The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and agents or delegate the power to remove same, as it shall from time to time deem necessary or desirable.
Section 6.4. Multiple Officeholders; Stockholder and Director Officers. Any number of offices may be held by the same person unless the Certificate of Incorporation or these Bylaws otherwise provide. Officers need not be stockholders or residents of the State of Delaware.
ARTICLE VII SHARES
Section 7.1. Certificated and Uncertificated Shares. The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion of the Board.
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Section 7.2. Multiple Classes of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the Corporation shall (a) cause the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights to be set forth in full or summarized on the face or back of any certificate that the Corporation issues to represent shares of such class or series of stock or (b) in the case of uncertificated shares, within a reasonable time after the issuance or transfer of such shares, send to the registered owner thereof a written notice containing the information required to be set forth on certificates as specified in clause (a) above; provided, however, that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there may be set forth on the face or back of such certificate or, in the case of uncertificated shares, on such written notice a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights.
Section
7.3. Signatures. Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation
by (a) the ChairmanChair
of the Board, Chief Executive Officer or the President and (b) the Treasurer, the Secretary or an Assistant Secretary of the Corporation.
Any or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose
facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate
is issued, such certificate may be issued by the Corporation with the same effect as if such person were such officer, transfer agent
or registrar on the date of issue.
Section 7.4. Consideration and Payment for Shares.
(a) Subject to applicable law and the Certificate of Incorporation, shares of stock may be issued for such consideration, having in the case of shares with par value a value not less than the par value thereof, and to such persons, as determined from time to time by the Board. The consideration may consist of any tangible or intangible property or benefit to the Corporation including cash, promissory notes, services performed, contracts for services to be performed, or other securities.
(b) Subject to applicable law and the Certificate of Incorporation, shares may not be issued until the full amount of the consideration has been paid, unless upon the face or back of each certificate issued to represent any partly paid shares of capital stock or upon the books and records of the Corporation in the case of partly paid uncertificated shares, there shall have been set forth the total amount of the consideration to be paid therefor and the amount paid thereon up to and including the time said certificate representing certificated shares or said uncertificated shares are issued.
Section 7.5. Lost, Destroyed or Wrongfully Taken Certificates.
(a) If an owner of a certificate representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation shall issue a new certificate representing such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate before the Corporation has notice that the certificate representing such shares has been acquired by a protected purchaser; (ii) if requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.
(b) If a certificate representing shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation of that fact within a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation registers a transfer of such shares before receiving notification, the owner shall be precluded from asserting against the Corporation any claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.
Section 7.6. Transfer of Stock.
(a) If a certificate representing shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of transfer of such shares or an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares, the Corporation shall register the transfer as requested if:
(i) in the case of certificated shares, the certificate representing such shares has been surrendered;
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(ii)(A) with respect to certificated shares, the endorsement is made by the person specified by the certificate as entitled to such shares; (B) with respect to uncertificated shares, an instruction is made by the registered owner of such uncertificated shares; or (C) with respect to certificated shares or uncertificated shares, the endorsement or instruction is made by any other appropriate person or by an agent who has actual authority to act on behalf of the appropriate person;
(iii) the Corporation has received a guarantee of signature of the person signing such endorsement or instruction or such other reasonable assurance that the endorsement or instruction is genuine and authorized as the Corporation may request;
(iv) the transfer does not violate any restriction on transfer imposed by the Corporation that is enforceable in accordance with Section 7.8(a); and
(v) such other conditions for such transfer as shall be provided for under applicable law have been satisfied.
(b) Whenever any transfer of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry of transfer if, when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated, when the instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request the Corporation to do so.
Section 7.7. Registered Stockholders. Before due presentment for registration of transfer of a certificate representing shares of the Corporation or of an instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner as the person exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation, vote such shares, receive dividends (to the extent that dividends are payable thereon) or notifications with respect to such shares and otherwise exercise all the rights and powers of the owner of such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee on behalf of such person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying such other conditions as are provided under applicable law, may also so inspect the books and records of the Corporation.
Section 7.8. Effect of the Corporation’s Restriction on Transfer.
(a) A written restriction on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the Corporation that may be owned by any person or group of persons, if permitted by the DGCL and noted conspicuously on the certificate representing such shares or, in the case of uncertificated shares, contained in a notice, offering circular or prospectus sent by the Corporation to the registered owner of such shares within a reasonable time prior to or after the issuance or transfer of such shares, may be enforced against the holder of such shares or any successor or transferee of the holder including an executor, administrator, trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of the holder.
(b) A restriction imposed by the Corporation on the transfer or the registration of shares of the Corporation or on the amount of shares of the Corporation that may be owned by any person or group of persons, even if otherwise lawful, is ineffective against a person without actual knowledge of such restriction unless: (i) the shares are certificated and such restriction is noted conspicuously on the certificate; or (ii) the shares are uncertificated and such restriction was contained in a notice, offering circular or prospectus sent by the Corporation to the registered owner of such shares prior to or within a reasonable time after the issuance or transfer of such shares.
Section 7.9. Regulations. The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of law, as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares of stock or certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for the validity thereof that certificates representing shares bear the signature of any transfer agent or registrar so appointed.
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ARTICLE VIII INDEMNIFICATION
Section 8.1. Right to Indemnification. To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she 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, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (hereinafter an “Indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such proceeding; provided, however, that, except as provided in Section 8.3 with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify an Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such proceeding (or part thereof) was authorized by the Board.
Section 8.2. Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 8.1, an Indemnitee shall also have the right to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including, without limitation, attorneys’ fees) incurred in defending or otherwise participating in any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the Delaware General Corporation Law (“DGCL”) requires, an advancement of expenses incurred by an Indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon the Corporation’s receipt of an undertaking (hereinafter an “undertaking”), by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this Article VIII or otherwise.
Section 8.3. Right of Indemnitee to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not paid in full by the Corporation within 60 days after a written claim therefor has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Corporation 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 Indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by an Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (b) 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 upon a final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that, the Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including a determination by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, shall be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation.
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Section 8.4. Non-Exclusivity of Rights. The rights provided to any Indemnitee pursuant to this Article VIII shall not be exclusive of any other right, which such Indemnitee may have or hereafter acquire under applicable law, the Certificate of Incorporation, these Bylaws, an agreement, a vote of stockholders or disinterested directors, or otherwise.
Section 8.5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Section 8.6. Indemnification of Other Persons. This Article VIII shall not limit the right of the Corporation to the extent and in the manner authorized or permitted by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting the foregoing, the Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation and to any other person who 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, trust or other enterprise, including service with respect to an employee benefit plan, to the fullest extent of the provisions of this Article VIII with respect to the indemnification and advancement of expenses of Indemnitees under this Article VIII.
Section 8.7. Amendments. Any repeal or amendment of this Article VIII by the Board or the stockholders of the Corporation or by changes in applicable law, or the adoption of any other provision of these Bylaws inconsistent with this Article VIII, will, to the extent permitted by applicable law, be prospective only (except to the extent such amendment or change in applicable law permits the Corporation to provide broader indemnification rights to Indemnitees on a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision; provided however, that amendments or repeals of this Article VIII shall require the affirmative vote of the stockholders holding at least 66.7% of the voting power of all outstanding shares of capital stock of the Corporation.
Section 8.8. Certain Definitions. For purposes of this Article VIII, (a) references to “other enterprise” shall include any employee benefit plan; (b) references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; (c) references to “serving at the request of the Corporation” shall include any service that imposes duties on, or involves services by, a person with respect to any employee benefit plan, its participants, or beneficiaries; and (d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interest of the Corporation” for purposes of Section 145 of the DGCL.
Section 8.9. Contract Rights. The rights provided to Indemnitees pursuant to this Article VIII shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators.
Section 8.10. Severability. If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Article VIII shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VIII (including, without limitation, each such portion of this Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
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ARTICLE IX
MISCELLANEOUS
Section 9.1. Place of Meetings. If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required under these Bylaws is not designated in the notice of such meeting, such meeting shall be held at the principal business office of the Corporation; provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at any place, but instead shall be held by means of remote communication pursuant to Section 9.5 hereof, then such meeting shall not be held at any place.
Section 9.2. Fixing Record Dates.
(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 may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board, 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, 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 business day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. 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 may fix a new record date for the adjourned meeting.
(b) 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 may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. 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 adopts the resolution relating thereto.
Section 9.3. Means of Giving Notice.
(a) Notice to Directors. Whenever under applicable law, the Certificate of Incorporation or these Bylaws notice is required to be given to any director, such notice shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery service, (ii) by means of facsimile telecommunication or other form of electronic transmission, or (iii) by oral notice given personally or by telephone. A notice to a director will be deemed given as follows: (i) if given by hand delivery, orally, or by telephone, when actually received by the director, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the director at the director’s address appearing on the records of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the director at the director’s address appearing on the records of the Corporation, (iv) if sent by facsimile telecommunication, when sent to the facsimile transmission number for such director appearing on the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic mail address for such director appearing on the records of the Corporation, or (vi) if sent by any other form of electronic transmission, when sent to the address, location or number (as applicable) for such director appearing on the records of the Corporation.
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(b) Notice to Stockholders. Whenever under applicable law, the Certificate of Incorporation or these Bylaws notice is required to be given to any stockholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by a nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented to by the stockholder, to the extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL. A notice to a stockholder shall be deemed given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the Corporation, and (iv) if given by a form of electronic transmission consented to by the stockholder to whom the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile transmission, when directed to a number at which the stockholder has consented to receive notice, (B) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice, (C) if by a posting on an electronic network together with separate notice to the stockholder of such specified posting, upon the later of (1) such posting and (2) the giving of such separate notice, and (D) if by any other form of electronic transmission, when directed to the stockholder. A stockholder may revoke such stockholder’s consent to receiving notice by means of electronic communication by giving written notice of such revocation to the Corporation. Any such consent shall be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the Secretary or an Assistant Secretary or to the Corporation’s transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
(c) Electronic Transmission. “Electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process, including but not limited to transmission by telex, facsimile telecommunication, electronic mail, telegram and cablegram.
(d) Notice to Stockholders Sharing Same Address. Without limiting the manner by which notice otherwise may be given effectively by the Corporation to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation or these Bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. A stockholder may revoke such stockholder’s consent by delivering written notice of such revocation to the Corporation. Any stockholder who fails to object in writing to the Corporation within 60 days of having been given written notice by the Corporation of its intention to send such a single written notice shall be deemed to have consented to receiving such single written notice.
(e) Exceptions to Notice Requirements. Whenever notice is required to be given, under the DGCL, the Certificate of Incorporation or these Bylaws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting that shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.
Whenever notice is required to be given by the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these Bylaws, to any stockholder to whom (1) notice of two consecutive annual meetings of stockholders and all notices of stockholder meetings or of the taking of action by written consent of stockholders without a meeting to such stockholder during the period between such two consecutive annual meetings, or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on securities during a 12-month period, have been mailed addressed to such stockholder at such stockholder’s address as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting that shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given. If any such stockholder shall deliver to the Corporation a written notice setting forth such stockholder’s then current address, the requirement that notice be given to such stockholder shall be reinstated. In the event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate need not state that notice was not given to persons to whom notice was not required to be given pursuant to Section 230(b) of the DGCL. The exception in subsection (1) of the first sentence of this paragraph to the requirement that notice be given shall not be applicable to any notice returned as undeliverable if the notice was given by electronic transmission.
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Section 9.4. Waiver of Notice. Whenever any notice is required to be given under applicable law, the Certificate of Incorporation, or these Bylaws, a written waiver of such notice, signed before or after the date of such meeting by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled to said notice, shall be deemed equivalent to such required notice. All such waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such meeting, except where a person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.
Section 9.5. Meeting Attendance via Remote Communication Equipment.
(a) Stockholder Meetings. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, 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 proxy holder, (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.
(b) Board Meetings. Unless otherwise restricted by applicable law, the Certificate of Incorporation or these Bylaws, members of the Board or any committee thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other. Such participation in a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.
Section 9.6. Dividends. The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s capital stock) on the Corporation’s outstanding shares of capital stock entitled to the receive dividends, subject to applicable law and the Certificate of Incorporation.
Section 9.7. Reserves. The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.
Section 9.8.
Contracts and Negotiable Instruments. Except as otherwise provided by applicable law, the Certificate of Incorporation or these Bylaws,
any contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the Corporation
by such officer or officers or other employee or employees of the Corporation as the Board may from time to time authorize. Such authority
may be general or confined to specific instances as the Board may determine. The ChairmanChair
of the Board, the Chief Executive Officer, the President, the Chief Financial Officer or the Treasurer may execute and deliver any contract,
bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed by the
Board, the ChairmanChair
of the Board Chief Executive Officer, President, the Chief Financial Officer or the Treasurer may delegate powers to execute and deliver
any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation to other officers or employees
of the Corporation under such person’s supervision and authority, it being understood, however, that any such delegation of power
shall not relieve such officer of responsibility with respect to the exercise of such delegated power.
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Section 9.9. Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board.
Section 9.10. Seal. The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 9.11. Books and Records. The books and records of the Corporation may be kept within or outside the State of Delaware at such place or places as may from time to time be designated by the Board.
Section 9.12.
Resignation. Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission
to the ChairmanChair of
the Board, the Chief Executive Officer, the President or the Secretary. The resignation shall take effect at the time specified therein,
or at the time of receipt of such notice if no time is specified or the specified time is earlier than the time of such receipt. Unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section
9.13. Surety Bonds. Such officers, employees and agents of the Corporation (if any) as the ChairmanChair
of the Board, Chief Executive Officer, President or the Board may direct, from time to time, shall be bonded for the faithful performance
of their duties and for the restoration to the Corporation, in case of their death, resignation, retirement, disqualification or removal
from office, of all books, papers, vouchers, money and other property of whatever kind in their possession or under their control belonging
to the Corporation, in such amounts and by such surety companies as the ChairmanChair
of the Board, Chief Executive Officer, President or the Board may determine. The premiums on such bonds shall be paid by the Corporation
and the bonds so furnished shall be in the custody of the Secretary.
Section
9.14. Securities of Other Corporations. Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other instruments
relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the ChairmanChair
of the Board, Chief Executive Officer, President or any Vice President. Any such officer, may, in the name of and on behalf of the Corporation,
take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation
in which the Corporation may own securities, or to consent in writing, in the name of the Corporation as such holder, to any action by
such corporation, and at any such meeting or with respect to any such consent shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed. The
Board may from time to time confer like powers upon any other person or persons.
Section 9.15. Amendments. The Board shall have the power to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the Bylaws; provided, however that any provision hereof which states that it may be changed by the unanimous vote of the entire Board may only be changed or amended by such vote. Except for any provision hereof which states that the Bylaws may be changed by the unanimous vote of the entire Board, the Bylaws also may be adopted, amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by applicable law or the Certificate of Incorporation, the affirmative vote of the holders of at least a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the Bylaws. Notwithstanding the foregoing, however, any provision hereof which states that it may be changed by the unanimous vote of the entire Board may only be changed or amended by such vote.
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