UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 11, 2015 (March 10, 2015)
SILICON IMAGE, INC.
(Exact name of Registrant as Specified in its Charter)
Delaware
(State or Other Jurisdiction of Incorporation)
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| 000-26887 |
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77-0396307 |
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File Number) |
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(IRS Employer
Identification No.) |
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| 1140 East Arques Ave., Sunnyvale, CA |
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94085 |
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(Zip Code) |
(408) 616-4000
(Registrant’s Telephone Number, Including Area Code)
Not Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 2.01. Completion of Acquisition or Disposition of Assets.
As previously disclosed, on January 26, 2015, Silicon Image, Inc., a Delaware corporation (the “Company”), Lattice
Semiconductor Corporation, a Delaware corporation (“Parent”), and Cayabyab Merger Company, a Delaware corporation and wholly owned subsidiary of Parent (the “Purchaser”), entered into an Agreement and Plan of Merger
(the “Merger Agreement”). Pursuant to the Merger Agreement, the Purchaser commenced a cash tender offer to acquire all outstanding shares of the Company’s common stock (each, a “Share”) at a purchase price of
$7.30 per Share (the “Offer Price”) , net to the seller in cash, without interest and less any applicable withholding tax, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated February 9, 2015
(as amended or supplemented, the “Offer to Purchase”) and in the related Letter of Transmittal (as amended or supplemented, the “Letter of Transmittal” and, together with the Offer to Purchase, the
“Offer”).
On March 10, 2015, Parent announced the completion of the Offer. The Offer expired at 12:00 midnight, New
York City time, at the end of the day on March 9, 2015. Purchaser and Parent have been advised by Computershare Trust Company, N.A., the depositary for the Offer (the “Depositary”), that, as of the expiration of the Offer, a
total of 64,379,310 Shares had been validly tendered into and not withdrawn pursuant to the Offer, representing approximately 81.6% of the outstanding Shares as of 12:00 midnight, New York City time, at the end of the day on March 9,
2015. Additionally, the Depositary has advised Parent and the Purchaser that an additional 1,931,865 Shares had been tendered by notice of guaranteed delivery, representing approximately 2.4% of the outstanding Shares at such time. The Purchaser has
accepted for payment all Shares validly tendered pursuant to the Offer and not properly withdrawn.
On March 10, 2015, the Purchaser
merged with and into the Company, with the Company surviving the merger and continuing as a wholly owned subsidiary of Parent (the “Merger”). As a result of the purchase of the Shares pursuant to the Offer, which Shares represented
a majority of the outstanding Shares on a fully-diluted basis, the Purchaser and Parent consummated the Merger under Section 251(h) of the Delaware General Corporation Law (the “DGCL”) without a vote of the stockholders of the
Company pursuant to Delaware law. At the effective time of the Merger (the “Effective Time”), each outstanding Share, other than (i) Shares that are owned by the Company, the Purchaser or Parent (or any of their direct or
indirect wholly owned subsidiaries) and (ii) Shares owned by stockholders of the Company who properly exercise and perfect their appraisal rights under Section 262 of the DGCL with respect to such Shares, if any, was converted into the
right to receive an amount of cash equal to the Offer Price, less any applicable tax withholding.
On March 10, 2015, Parent issued a
press release announcing the expiration and results of the Offer and the consummation of the Merger. A copy of the press release included as Exhibit 99.1 hereto was filed as Exhibit (a)(5)(J) to Lattice Semiconductor’s Amendment No. 3 to
the Tender Offer Statement on Schedule TO filed by Lattice Semiconductor and Purchaser on March 10, 2015 and is incorporated by reference herein.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
As a result of the transactions described in Item 2.01 of this Current Report on Form 8-K, which are incorporated by reference herein, the
Company requested that the Shares be withdrawn from listing on the NASDAQ Global Select Market as of the close of market on March 10, 2015. Accordingly, on March 10, 2015, the NASDAQ Stock Market, LLC (the “NASDAQ”) filed
with the Securities and Exchange Commission (the “SEC”) a Form 25 Notification of Removal from Listing and/or Registration under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), to delist and deregister the Shares. Upon the filing of the Form 25, the Shares were delisted from the NASDAQ. The Company intends to file with the SEC a Form 15 under the Exchange Act relating to the Shares, which will terminate and
suspend the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act, respectively.
Item 3.03. Material Modification
to Rights of Security Holders.
As a result of the Merger and at the Effective Time of the Merger, each issued and outstanding Share,
other than (i) Shares that are owned by the Company, the Purchaser or Parent (or any of their direct or indirect wholly owned subsidiaries) and (ii) Shares owned by stockholders of the Company who properly exercise and perfect their
appraisal rights under Section 262 of the DGCL with respect to such Shares, if any, was automatically cancelled and converted into the right to receive an amount of cash equal to the Offer Price, less any applicable tax withholding. At the
Effective Time, the holders of such Shares ceased to have any rights as stockholders of the Company (other than their right to receive an amount of cash equal to the Offer Price, less any applicable withholding tax).
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated by
reference herein.
Item 5.01. Changes in Control of Registrant.
As a result of the completion of the Offer, a change of control of the Company occurred. Upon the consummation of the Merger, the Company
became a wholly owned subsidiary of Parent. The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated by reference herein. The cost to acquire all of the outstanding Shares of the Company pursuant to the Offer
and the Merger, and in connection with the cancellation or assumption of all outstanding equity awards granted by the Company, was approximately $606.6 million. Such payments were funded by a combination of debt financing and cash on hand.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Pursuant to the terms of the Merger Agreement, at the Effective Time, the directors and officers of the Purchaser
immediately prior to the Effective Time became the directors and officers of the Company following the Effective Time. Accordingly, at the Effective Time, each of Camillo Martino, William Raduchel, Peter Hanelt, Masood Jabbar, William George and
Umesh Padval ceased to be directors of the Company and any committee thereof. No director resigned because of any disagreement with the Company on any matter relating to the Company’s operation, policies, or practices. Effective prior to the
expiration of the Offer, Edward Lopez, Chief Legal and Administrative Officer, Timothy Vehling, Senior Vice President, Connectivity Group, Seamus Meagher, Vice President, Worldwide Sales, Khurram Sheikh, Chief Strategy and Technology Officer and
Stanley Mbugua, Corporate Controller, ceased being executive officers of the Company. At the Effective Time, Camillo Martino, the Chief Executive Officer, and Raymond Cook, the Chief Financial Officer, ceased being executive officers of the Company.
Also at the Effective Time, Darin G. Billerbeck (age 55) assumed the role of director and President of the Company, Joe G. Bedewi (age
55) assumed the role of director and Treasurer of the Company and Byron W. Milstead (age 58) assumed the role of director and Secretary of the Company. At the time Messrs. Billerbeck, Bedewi and Milstead assumed the roles of directors, it had not
yet been determined on which committees, if any, of the Board of Directors of the Company Messrs. Billerbeck, Bedewi and Milstead would serve.
The information required by Item 5.02 of Form 8-K regarding the new directors and executive officers of the Company has been previously
disclosed in Schedule 1 of the Offer to Purchase as filed with the Tender Offer Statement on Schedule TO, originally filed by the Purchaser and Parent with the SEC on February 9, 2015, which is included as Exhibit 20.1 to this report, and such
information is incorporated by reference herein.
Item 5.03. Amendments to Certificate of Incorporation or Bylaws; Change of Fiscal Year.
Pursuant to the Merger Agreement, at the Effective Time, the Company’s Amended and Restated Certificate of Incorporation was amended and
restated (the “Amended Certificate of Incorporation”) and the Company’s Amended and Restated Bylaws were amended and restated (the “Amended Bylaws”).
The Amended Certificate of Incorporation and the Amended Bylaws are attached hereto as Exhibits 3.1 and 3.2 respectively, and are incorporated
herein by reference.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits. The following exhibits are filed as part of this Current Report on Form 8-K:
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| Exhibit
No. |
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Description |
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| 3.1 |
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Amended and Restated Certificate of Incorporation of Silicon Image, Inc.* |
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| 3.2 |
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Amended and Restated Bylaws of Silicon Image, Inc.* |
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| 20.1 |
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Schedule 1 of the Offer to Purchase dated February 9, 2015, as amended (incorporated by reference to Exhibit (a)(1)(A) to Lattice
Semiconductor’s Tender Offer Statement on Schedule TO filed on February 9, 2015, as amended February 26, 2015, February 27, 2015 and March 10, 2015) |
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| 99.1 |
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Press Release of Lattice Semiconductor dated March 10, 2015 (incorporated by reference to Exhibit (a)(5)(J) to Lattice Semiconductor’s Amendment No. 3 to the Tender Offer Statement on Schedule TO, filed on March 10,
2015). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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| Date: March 11, 2015 |
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SILICON IMAGE, INC. |
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By: |
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/s/ Byron W. Milstead |
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Byron W. Milstead |
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Secretary |
Exhibit Index
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| Exhibit
No. |
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Description |
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| 3.1 |
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Amended and Restated Certificate of Incorporation of Silicon Image, Inc.* |
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Amended and Restated Bylaws of Silicon Image, Inc.* |
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| 20.1 |
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Schedule 1 of the Offer to Purchase dated February 9, 2015, as amended (incorporated by reference to Exhibit (a)(1)(A) to Lattice
Semiconductor’s Tender Offer Statement on Schedule TO filed on February 9, 2015, as amended February 26, 2015, February 27, 2015 and March 10, 2015) |
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| 99.1 |
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Press Release of Lattice Semiconductor dated March 10, 2015 (incorporated by reference to Exhibit (a)(5)(J) to Lattice Semiconductor’s Amendment No. 3 to the Tender Offer Statement on Schedule TO, filed on March 10,
2015). |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
SILICON
IMAGE, INC.
FIRST: The name of the Corporation is Silicon Image, Inc. (the “Corporation”).
SECOND: The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, in the City of
Wilmington, County of New Castle, 19801. The name of its registered agent at that address is The Corporation Trust Company.
THIRD:
The purpose of the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware Code (the “GCL”).
FOURTH: The total number of shares of stock which the Corporation shall have authority to issue is one thousand (1000) shares
of Common Stock, each having a par value of one tenth of one cent ($0.001).
FIFTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
(1) The business and affairs of the Corporation shall be managed by or under the direction of the board of directors of the Corporation (the
“Board of Directors”).
(2) The directors shall have concurrent power with the stockholders to make, alter, amend, change,
add to or repeal the bylaws of the Corporation (the “Bylaws”).
(3) The number of directors of the Corporation shall be as
from time to time fixed by, or in the manner provided in, the Bylaws. Election of directors need not be by written ballot unless the Bylaws so provide.
(4) No director shall be personally liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the GCL or (iv) for any transaction from which the director derived an improper personal benefit. Any repeal or modification of this Article FIFTH by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.
(5) The Corporation shall indemnify, to the fullest extent permitted by applicable law, any
director or officer of the Corporation who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a
“Proceeding”) by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another
Corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with any such Proceeding. The Corporation shall be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized by the Board.
The Corporation shall have the power to indemnify, to the extent permitted by the GCL, as it presently exists or may hereafter be amended from
time to time, any employee or agent of the Corporation who was or is a party or is threatened to be made a party to any Proceeding by reason of the fact that he or she is or was a director, officer, employee or agent of the Corporation or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.
Any repeal or modification of this Article FIFTH by the stockholders of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.
(6) In addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the GCL, this certificate of incorporation (the “Certificate of Incorporation”),
and any Bylaws adopted by the stockholders; provided, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the directors which would have been valid if such Bylaws had not been adopted.
SIXTH: Meetings of stockholders may be held within or without the State of Delaware, as the Bylaws may provide. The books of the
Corporation may be kept (subject to any provision contained in the GCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws.
SEVENTH: The Corporation reserves the right to amend, alter, change or repeal any provision contained in the Certificate of
Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
2
Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
SILICON IMAGE, INC.
A
Delaware Corporation
Effective March 10, 2015
TABLE OF CONTENTS
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Page |
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| ARTICLE I |
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| OFFICES |
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| Section 1.1 |
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Registered Office |
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1 |
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| Section 1.2 |
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Other Offices |
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1 |
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| ARTICLE II MEETINGS OF STOCKHOLDERS |
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| Section 2.1 |
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Place of Meetings |
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2 |
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| Section 2.2 |
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Annual Meetings |
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2 |
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| Section 2.3 |
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Special Meetings |
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2 |
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| Section 2.4 |
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Notice |
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3 |
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| Section 2.5 |
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Adjournments |
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3 |
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| Section 2.6 |
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Quorum |
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3 |
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| Section 2.7 |
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Voting |
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4 |
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| Section 2.8 |
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Proxies |
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4 |
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| Section 2.9 |
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Consent of Stockholders in Lieu of Meeting |
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6 |
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| Section 2.10 |
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List of Stockholders Entitled to Vote |
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7 |
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| Section 2.11 |
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Record Date |
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8 |
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| Section 2.12 |
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Stock Ledger |
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9 |
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| Section 2.13 |
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Conduct of Meetings |
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9 |
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| ARTICLE III |
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| DIRECTORS |
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| Section 3.1 |
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Number and Election of Directors |
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10 |
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| Section 3.2 |
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Vacancies |
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10 |
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| Section 3.3 |
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Duties and Powers |
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11 |
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| Section 3.4 |
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Meetings |
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11 |
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| Section 3.5 |
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Organization |
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12 |
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| Section 3.6 |
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Resignations and Removals of Directors |
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| Section 3.7 |
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Quorum |
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13 |
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| Section 3.8 |
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Actions of the Board by Written Consent |
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13 |
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| Section 3.9 |
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Meetings by Means of Conference Telephone |
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| Section 3.10 |
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Committees |
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| Section 3.11 |
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Compensation |
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| Section 3.12 |
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Interested Directors |
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| ARTICLE IV |
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| OFFICERS |
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| Section 4.1 |
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General |
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| Section 4.2 |
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Election |
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| Section 4.3 |
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Voting Securities Owned by the Corporation |
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| Section 4.4 |
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Chairman of the Board of Directors |
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| Section 4.5 |
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President |
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| Section 4.6 |
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Vice Presidents |
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| Section 4.7 |
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Secretary |
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| Section 4.8 |
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Treasurer |
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| Section 4.9 |
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Assistant Secretaries |
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| Section 4.10 |
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Assistant Treasurers |
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| Section 4.11 |
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Other Officers |
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| ARTICLE V |
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| STOCK |
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| Section 5.1 |
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Form of Certificates |
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| Section 5.2 |
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Signatures |
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| Section 5.3 |
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Lost Certificates |
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| Section 5.4 |
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Transfers |
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| Section 5.5 |
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Dividend Record Date |
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| Section 5.6 |
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Record Owners |
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| Section 5.7 |
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Transfer and Registry Agents |
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| ARTICLE VI |
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| NOTICES |
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| Section 6.1 |
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Notices |
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| Section 6.2 |
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Waivers of Notice |
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| ARTICLE VII |
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| GENERAL PROVISIONS |
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| Section 7.1 |
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Dividends |
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| Section 7.2 |
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Disbursements |
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| Section 7.3 |
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Fiscal Year |
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| Section 7.4 |
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Corporate Seal |
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| ARTICLE VIII |
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| INDEMNIFICATION |
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| Section 8.1 |
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Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation |
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| Section 8.2 |
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Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the Corporation |
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| Section 8.3 |
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Authorization of Indemnification |
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| Section 8.4 |
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Good Faith Defined |
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| Section 8.5 |
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Indemnification by a Court |
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| Section 8.6 |
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Expenses Payable in Advance |
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| Section 8.7 |
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Nonexclusivity of Indemnification and Advancement of Expenses |
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| Section 8.8 |
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Insurance |
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| Section 8.9 |
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Certain Definitions |
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| Section 8.10 |
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Survival of Indemnification and Advancement of Expenses |
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| Section 8.11 |
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Limitation on Indemnification |
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| Section 8.12 |
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Indemnification of Employees and Agents |
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| ARTICLE IX |
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| FORUM FOR ADJUDICATION OF CERTAIN DISPUTES |
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| Section 9.1 |
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Forum for Adjudication of Certain Disputes |
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| ARTICLE X |
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| AMENDMENTS |
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| Section 10.1 |
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Amendments |
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| Section 10.2 |
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Entire Board of Directors |
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AMENDED AND RESTATED
BYLAWS
OF
SILICON IMAGE, INC.
(hereinafter called the “Corporation”)
ARTICLE I
OFFICES
Section 1.1 Registered Office. The registered office of the Corporation shall be in the City of Wilmington, County of
New Castle , State of Delaware.
Section 1.2 Other Offices. The Corporation may also have offices at such other places, both
within and without the State of Delaware, as the board of directors of the Corporation (the “Board of Directors”) may from time to time determine.
1
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 2.1 Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held
at such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors.
Section 2.2 Annual Meetings. The annual meeting of stockholders for the election of directors (the “Annual
Meeting”) shall be held on such date and at such time as shall be designated from time to time by the Board of Directors. Any other proper business may be transacted at the Annual Meeting.
Section 2.3 Special Meetings. Unless otherwise required by law or by the certificate of incorporation of the Corporation, as
amended and restated from time to time (the “Certificate of Incorporation”), a special meetings of stockholders (“Special Meeting”), for any purpose or purposes, may be called by either (i) the chairman of the
Board of Directors (the “Chairman of the Board”), if there be one, or (ii) the president of the Corporation (the “President”), (iii) any vice president of the Corporation (“Vice
President”), if there be one, (iv) the secretary of the Corporation (the “Secretary”) or (v) any assistant secretary of the Corporation (“Assistant Secretary”), if there be one, and shall be
called by any such officer at the request in writing of (i) the Board of Directors, (ii) a committee of the Board of Directors that has been duly designated by the Board of Directors and whose powers and authority include the power to call
such meetings or (iii) stockholders owning a majority of the capital stock of the Corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. At a Special Meeting, only such
business shall be conducted as shall be specified in the notice of meeting (or any supplement thereto).
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Section 2.4 Notice. Whenever stockholders are required or permitted to take any
action at a meeting, a written notice of the meeting shall be given which shall state the place, date and hour of the meeting, and, in the case of a Special Meeting, the purpose or purposes for which the meeting is called. Unless otherwise required
by law, written notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to notice of and to vote at such meeting.
Section 2.5 Adjournments. Any meeting of the stockholders may be adjourned from time to time to reconvene at the same or some
other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may transact any business which might
have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting in accordance with the
requirements of Section 6 hereof shall be given to each stockholder of record entitled to notice of and to vote at the meeting.
Section 2.6 Quorum. Unless otherwise required by applicable law or the Certificate of Incorporation, the holders of a majority of
the Corporation’s capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. A quorum, once
established, shall not be broken by the withdrawal of
3
enough votes to leave less than a quorum. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have power to adjourn the meeting from time to time, in the manner provided in Section 2.5 hereof, until a quorum shall be present or represented.
Section 2.7 Voting. Unless otherwise required by law, the Certificate of Incorporation or these bylaws, as amended and restated
from time to time (the “Bylaws”), or permitted by the rules of any stock exchange on which the Corporation’s shares are listed and traded, any question brought before any meeting of the stockholders, other than the election of
directors, shall be decided by the vote of the holders of a majority of the total number of votes of the Corporation’s capital stock represented at the meeting and entitled to vote on such question, voting as a single class. Unless otherwise
provided in the Certificate of Incorporation, and subject to Section 11(a) of this Article II, each stockholder represented at a meeting of the stockholders shall be entitled to cast one (1) vote for each share of the capital stock
entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy as provided in Section 8 of this Article II. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of
the stockholders, in such officer’s discretion, may require that any votes cast at such meeting shall be cast by written ballot.
Section 2.8 Proxies. Each stockholder entitled to vote at a meeting of the 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 as proxy, but no such proxy shall be voted upon after three years from its date, unless such proxy
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provides for a longer period. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, 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 a telegram or cablegram 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 telegram or cablegram, provided that any such telegram or cablegram must either set forth or be submitted with information from
which it can be determined that the telegram or cablegram was authorized by the stockholder. If it is determined that such telegrams or cablegrams are valid, the inspectors or, if there are no inspectors, such other persons making that determination
shall specify the information on which they relied.
Any copy, facsimile telecommunication or other reliable reproduction of the writing, telegram or
cablegram authorizing another person or persons to act as proxy for a
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stockholder may be substituted or used in lieu of the original writing, telegram or cablegram for any and all purposes for which the original writing, telegram or cablegram could be used;
provided, however, that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing, telegram or cablegram.
Section 2.9 Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in the Certificate of Incorporation, any action
required or permitted to be taken at any Annual Meeting or Special Meeting may be taken without a meeting, without prior notice and without a vote, if a consent or consents 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 the stockholders are recorded.
Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Every written consent shall bear the date of signature of each stockholder who signs the consent and no written
consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered in the manner required by this Section 2.9 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 the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of
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the book in which proceedings of meetings of the stockholders are recorded. Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the
original writing for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing. Prompt notice of the taking of the
corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if
the record date for such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation as provided above in this Section 2.9.
Section 2.10 List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the
Corporation shall prepare and make, at least ten (10) days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten
(10) days prior to the meeting (i) either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held or
(ii) during ordinary business hours, at the principal place of business of the Corporation. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who
is present.
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Section 2.11 Record Date.
(a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty
(60) nor less than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of the stockholders shall be
at the close of business on the day preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to
notice of or to vote at a meeting of the stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than ten (10) days after the
date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the first date on which a
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signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in 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 the stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
Section 2.12 Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled
to examine the stock ledger, the list required by Section 10 of this Article II or the books of the Corporation, or to vote in person or by proxy at any meeting of the stockholders.
Section 2.13 Conduct of Meetings. The Board of Directors may adopt by resolution such rules and regulations for the conduct of any
meeting of the stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of the stockholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or
prescribed by the chairman of the meeting, may include, without limitation, the following: (i) the establishment of an agenda or
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order of business for the meeting; (ii) the determination of when the polls shall open and close for any given matter to be voted on at the meeting; (iii) rules and procedures for
maintaining order at the meeting and the safety of those present; (iv) 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 chairman of the meeting shall determine; (v) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (vi) limitations on the time allotted to questions or comments by participants.
ARTICLE III
DIRECTORS
Section 3.1 Number and Election of Directors. The Board of Directors shall consist of not less than one nor more than fifteen
members, the exact number of which shall initially be fixed by the Incorporator and thereafter from time to time by the Board of Directors. Except as provided in Section 2 of this Article III, directors shall be elected by a plurality of the
votes cast at each Annual Meeting and each director so elected shall hold office until the next Annual Meeting and until such director’s successor is duly elected and qualified, or until such director’s earlier death, resignation or
removal. Directors need not be stockholders.
Section 3.2 Vacancies. Unless otherwise required by law or the Certificate of
Incorporation, vacancies on the Board of Directors or any committee thereof arising through death, resignation, removal, an increase in the number of directors constituting the Board of Directors or such committee or otherwise may be filled only by
a majority of the directors then in office, though less than a quorum, or by a sole
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remaining director. The directors so chosen shall, in the case of the Board of Directors, hold office until the next annual election and until their successors are duly elected and qualified, or
until their earlier death, resignation or removal and, in the case of any committee of the Board of Directors, shall hold office until their successors are duly appointed by the Board of Directors or until their earlier death, resignation or
removal.
Section 3.3 Duties and Powers. The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors 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 the Bylaws required to be exercised or done by the
stockholders.
Section 3.4 Meetings. The Board of Directors and any committee thereof may hold meetings, both regular and
special, either within or without the State of Delaware. Regular meetings of the Board of Directors or any committee thereof may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors
or such committee, respectively. Special meetings of the Board of Directors may be called by the Chairman of the Board, if there be one, the President, or by any director. Special meetings of any committee of the Board of Directors may be called by
the chairman of such committee, if there be one, the President, or any director serving on such committee. Notice thereof stating the place, date and hour of the meeting shall be given to each director (or, in the case of a committee, to each member
of such committee) either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone or telegram on twenty-four (24) hours’ notice, or on such shorter notice as the person or persons calling such meeting
may deem necessary or appropriate in the circumstances.
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Section 3.5 Organization. At each meeting of the Board of Directors or any committee
thereof, the Chairman of the Board or the chairman of such committee, as the case may be, or, in his or her absence or if there be none, a director chosen by a majority of the directors present, shall act as chairman. Except as provided below, the
Secretary of the Corporation shall act as secretary at each meeting of the Board of Directors and of each committee thereof. In case the Secretary shall be absent from any meeting of the Board of Directors or of any committee thereof, an Assistant
Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all the Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
Notwithstanding the foregoing, the members of each committee of the Board of Directors may appoint any person to act as secretary of any meeting of such committee and the Secretary or any Assistant Secretary of the Corporation may, but need not if
such committee so elects, serve in such capacity.
Section 3.6 Resignations and Removals of Directors. Any director of the
Corporation may resign from the Board of Directors or any committee thereof at any time, by giving notice in writing to the Chairman of the Board, if there be one, the President or the Secretary of the Corporation and, in the case of a committee, to
the chairman of such committee, if there be one. Such resignation shall take effect at the time therein specified or, if no time is specified, immediately; and, unless otherwise specified in such notice, the acceptance of such resignation shall not
be necessary to
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make it effective. Except as otherwise required by applicable law and subject to the rights, if any, of the holders of shares of preferred stock then outstanding, any director or the entire Board
of Directors may be removed from office at any time by the affirmative vote of the holders of at least a majority in voting power of the issued and outstanding capital stock of the Corporation entitled to vote in the election of directors. Any
director serving on a committee of the Board of Directors may be removed from such committee at any time by the Board of Directors.
Section 3.7 Quorum. Except as otherwise required by law, the Certificate of Incorporation or the rules and regulations of any
securities exchange or quotation system on which the Corporation’s securities are listed or quoted for trading, at all meetings of the Board of Directors or any committee thereof, a majority of the entire Board of Directors or a majority of the
directors constituting such committee, as the case may be, shall constitute a quorum for the transaction of business and the act of a majority of the directors or committee members present at any meeting at which there is a quorum shall be the act
of the Board of Directors or such committee, as applicable. If a quorum shall not be present at any meeting of the Board of Directors or any committee thereof, the directors present thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present.
Section 3.8
Actions of the Board by Written Consent. Unless otherwise provided in the Certificate of Incorporation or the Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or
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such committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or such committee.
Section 3.9 Meetings by Means of Conference Telephone. Unless otherwise provided in the Certificate of Incorporation or the
Bylaws, members of the Board of Directors, or any committee thereof, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.9 shall constitute presence in person at such meeting.
Section 3.10 Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of
the directors of the Corporation. Each member of a committee must meet the requirements for membership, if any, imposed by applicable law and the rules and regulations of any securities exchange or quotation system on which the securities of the
Corporation are listed or quoted for trading. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. Subject to the
rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or quoted for trading, in the absence or disqualification of a member of a committee, and in the absence of a designation by
the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or
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members constitute a quorum, may unanimously appoint another qualified member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to
the extent permitted by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers which may require it. Each committee shall keep regular minutes and report to the Board of Directors when required. Notwithstanding anything to the contrary contained in this Article
III, the resolution of the Board of Directors establishing any committee of the Board of Directors and/or the charter of any such committee may establish requirements or procedures relating to the governance and/or operation of such committee that
are different from, or in addition to, those set forth in the Bylaws and, to the extent that there is any inconsistency between the Bylaws and any such resolution or charter, the terms of such resolution or charter shall be controlling.
Section 3.11 Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of
Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary for service as director, payable in cash or securities. No such payment shall preclude any director from serving the Corporation in any
other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for service as committee members.
Section 3.12 Interested Directors. No contract or transaction between the Corporation and one or more of its directors or
officers, or between the Corporation
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and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers or have a financial interest, shall be void
or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because any such
director’s or officer’s vote is counted for such purpose if: (i) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to the director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or
transaction is specifically approved in good faith by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee
thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
Section 4.1 General. The officers of the Corporation shall be chosen by the Board of Directors and shall be a President, a
Secretary and a Treasurer. The Board of Directors, in its discretion, also may choose a Chairman of the Board (who must
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be a director) and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited
by law, the Certificate of Incorporation or the Bylaws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board, need such officers be directors of the Corporation.
Section 4.2 Election. The Board of Directors, at its first meeting held after each Annual Meeting (or action by written consent of
stockholders in lieu of the Annual Meeting), shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of
Directors; and each officer of the Corporation shall hold office until such officer’s successor is elected and qualified, or until such officer’s earlier death, resignation or removal. Any officer elected by the Board of Directors may be
removed at any time by the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of Directors.
Section 4.3 Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents 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 President or any Vice President or any other officer authorized to do so by the Board of Directors and 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
and at any such meeting shall possess and may exercise
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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 if present. The Board of Directors
may, by resolution, from time to time confer like powers upon any other person or persons.
Section 4.4 Chairman of the Board of
Directors. The Chairman of the Board, if there be one, shall preside at all meetings of the stockholders and of the Board of Directors. The Chairman of the Board shall be the chief executive officer of the Corporation (the “Chief
Executive Officer”), unless the Board of Directors designates the President as the Chief Executive Officer, and, except where by law the signature of the President is required, the Chairman of the Board shall possess the same power as the
President to sign all contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors. During the absence or disability of the President, the Chairman of the Board shall exercise all the powers and
discharge all the duties of the President. The Chairman of the Board shall also perform such other duties and may exercise such other powers as may from time to time be assigned by the Bylaws or by the Board of Directors.
Section 4.5 President. The President shall, subject to the control of the Board of Directors and, if there be one, the Chairman of
the Board, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. The President shall execute all bonds, mortgages, contracts and other instruments
of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute
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documents when so authorized by the Bylaws, the Board of Directors or the President. In the absence or disability of the Chairman of the Board, or if there be none, the President shall preside at
all meetings of the stockholders and, provided the President is also a director, the Board of Directors. If there be no Chairman of the Board, or if the Board of Directors shall otherwise designate, the President shall be the Chief Executive
Officer. The President shall also perform such other duties and may exercise such other powers as may from time to time be assigned to such officer by the Bylaws or by the Board of Directors.
Section 4.6 Vice Presidents. At the request of the President or in the President’s absence or in the event of the
President’s inability or refusal to act (and if there be no Chairman of the Board), the Vice President, or the Vice Presidents if there are more than one (in the order designated by the Board of Directors), shall perform the duties of the
President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. Each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may
prescribe. If there be no Chairman of the Board and no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act,
shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.
Section 4.7 Secretary. The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and
record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform
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like duties for committees of the Board of Directors when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board of Directors, the Chairman of the Board or the President, under whose supervision the Secretary shall be. If the Secretary shall be unable or shall refuse to cause to
be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the President may choose another officer to cause such notice to be
given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by
the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest to the affixing by such officer’s
signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.
Section 4.8 Treasurer. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate
accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board
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of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all transactions as Treasurer and of the financial condition of the Corporation. If required by
the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of the office of the Treasurer and for
the restoration to the Corporation, in case of the Treasurer’s death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in the Treasurer’s possession or under the
Treasurer’s control belonging to the Corporation.
Section 4.9 Assistant Secretaries. Assistant Secretaries, if there be
any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of
the Secretary’s inability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.
Section 4.10 Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of the Treasurer’s inability or refusal to act, shall
perform the duties of the Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such
sum and with such surety or sureties as shall be satisfactory to the Board of Directors for
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the faithful performance of the duties of the office of Assistant Treasurer and for the restoration to the Corporation, in case of the Assistant Treasurer’s death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of whatever kind in the Assistant Treasurer’s possession or under the Assistant Treasurer’s control belonging to the Corporation.
Section 4.11 Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
Section 5.1 Form of Certificates. Every holder of stock in the Corporation shall be entitled to have a certificate signed by, or
in the name of the Corporation (i) by the Chairman of the Board, or the President or a Vice President and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, certifying the number
of shares owned by such stockholder in the Corporation.
Section 5.2 Signatures. Any or all of the signatures on a 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,
it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
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Section 5.3 Lost Certificates. The Board of Directors may direct a new certificate to
be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed.
When authorizing such issuance of a new certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or such owner’s legal
representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation on account of the
alleged loss, theft or destruction of such certificate or the issuance of such new certificate.
Section 5.4 Transfers. Stock
of the Corporation shall be transferable in the manner prescribed by applicable law and in the Bylaws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by such person’s attorney
lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; provided, however, that such surrender and endorsement or payment of taxes shall not be
required in any case in which the officers of the Corporation shall determine to waive such requirement. Every certificate exchanged, returned or surrendered to the Corporation shall be marked “Cancelled,” with the date of cancellation, by
the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of
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stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by an entry showing from and to whom transferred.
Section 5.5 Dividend Record Date. In order that the Corporation may determine the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (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 of Directors adopts the resolution relating thereto.
Section 5.6 Record Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by law.
Section 5.7 Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agencies
and registry offices or agencies at such place or places as may be determined from time to time by the Board of Directors.
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ARTICLE VI
NOTICES
Section 6.1 Notices. Whenever written notice is required by law, the Certificate of Incorporation or the Bylaws, to be given to
any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at such person’s address as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by telegram, telex or cable.
Section 6.2 Waivers of Notice. Whenever any notice is required by applicable law, the Certificate of Incorporation or the Bylaws,
to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Attendance of a
person at a meeting, present in person or represented by proxy, shall constitute a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting at the beginning of the meeting to the transaction
of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any Annual Meeting or Special Meeting or any regular or special meeting of the directors or members of a committee
of directors need be specified in any written waiver of notice unless so required by law, the Certificate of Incorporation or the Bylaws.
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ARTICLE VII
GENERAL PROVISIONS
Section 7.1 Dividends. Dividends upon the capital stock of the Corporation, subject to the requirements of the General Corporation
Law of the State of Delaware (the “DGCL”) and the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting of the Board of Directors (or any action by
written consent in lieu thereof in accordance with Section 8 of Article III hereof), and may be paid in cash, in property, or in shares of the Corporation’s capital stock. Before payment of any dividend, there may be set aside out of any
funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for purchasing any of the shares of capital
stock, warrants, rights, options, bonds, debentures, notes, scrip or other securities or evidences of indebtedness of the Corporation, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper
purpose, and the Board of Directors may modify or abolish any such reserve.
Section 7.2 Disbursements. All checks or demands
for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.
Section 7.3 Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
Section 7.4 Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its
organization and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
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ARTICLE VIII
INDEMNIFICATION
Section 8.1 Power to Indemnify in Actions, Suits or Proceedings other than Those by or in the Right of the Corporation. Subject to
Section 3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of
the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere
or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.
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Section 8.2 Power to Indemnify in Actions, Suits or Proceedings by or in the Right of the
Corporation. Subject to Section 3 of this Article VIII, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that such person is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement
of such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue
or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 8.3 Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall
be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present
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or former director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as
the case may be. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion or (iv) by the stockholders. Such determination shall be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation. To
the extent, however, that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.
Section 8.4 Good Faith Defined. For purposes of any determination under Section 3 of this Article VIII, a person shall be
deemed to have acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe
such person’s conduct was unlawful, if such person’s action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to such person by the officers of the Corporation or
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another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The provisions of this Section 4 shall not be deemed to be exclusive
or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be.
Section 8.5 Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 3 of
this Article VIII, and notwithstanding the absence of any determination thereunder, any director or officer may apply to the Court of Chancery of the State of Delaware or any other court of competent jurisdiction in the State of Delaware for
indemnification to the extent otherwise permissible under Section 1 or Section 2 of this Article VIII. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is
proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under
Section 3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct.
Notice of any application for indemnification pursuant to this Section 5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall
also be entitled to be paid the expense of prosecuting such application.
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Section 8.6 Expenses Payable in Advance. Expenses (including attorneys’ fees)
incurred by a director or officer in defending any civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized in this Article VIII. Such expenses (including
attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the Corporation deems appropriate.
Section 8.7 Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation, the Bylaws, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of
the persons specified in Section 1 and Section 2 of this Article VIII shall be made to the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed to preclude the indemnification of any person who is not
specified in Section 1 or Section 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions of the DGCL, or otherwise.
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Section 8.8 Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the Corporation would have the power or
the obligation to indemnify such person against such liability under the provisions of this Article VIII.
Section 8.9 Certain
Definitions. For purposes of this Article VIII, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a
director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the
same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. The term “another
enterprise” as used in this Article VIII shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a
director, officer, employee or agent. For purposes of this Article VIII, references to
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“fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall
include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and 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 interests of the
Corporation” as referred to in this Article VIII.
Section 8.10 Survival of Indemnification and Advancement of Expenses.
The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure
to the benefit of the heirs, executors and administrators of such a person.
Section 8.11 Limitation on Indemnification.
Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 5 of this Article VIII), the Corporation shall not be obligated to
indemnify any director or officer (or his or her heirs, executors or personal or legal representatives) or advance expenses in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors.
Section 8.12 Indemnification of Employees and Agents. The Corporation
may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VIII to directors
and officers of the Corporation.
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ARTICLE IX
FORUM FOR ADJUDICATION OF CERTAIN DISPUTES
Section 9.1 Forum for Adjudication of Certain Disputes. Unless the Corporation consents in writing to the selection of an
alternative forum (an “Alternative Forum Consent”), the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation,
(ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, stockholder, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim
against the Corporation or any director, officer, stockholder, employee or agent of the Corporation arising out of or relating to any provision of the General Corporation Law of Delaware or the Certificate of Incorporation or Bylaws, or
(iv) any action asserting a claim against the Corporation or any director, officer, stockholder, employee or agent of the Corporation governed by the internal affairs doctrine of the State of Delaware; provided, however, that, in
the event that the Court of Chancery of the State of Delaware lacks subject matter jurisdiction over any such action or proceeding, the sole and exclusive forum for such action or proceeding shall be another state or federal court located
within the State of Delaware, in each such case, unless the Court of Chancery (or such other state or federal court located within the State of Delaware, as applicable) has dismissed a prior action by the same plaintiff asserting the same claims
because such court lacked personal jurisdiction over an indispensable party named as a defendant therein. Failure to
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enforce the foregoing provisions would cause the Corporation irreparable harm and the Corporation shall be entitled to equitable relief, including injunctive relief and specific performance, to
enforce the foregoing provisions. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 9.1 of
Article IX. The existence of any prior Alternative Forum Consent shall not act as a waiver of the Corporation’s ongoing consent right as set forth above in this Section 9.1 of Article IX with respect to any current or future actions or
claims.
ARTICLE X
AMENDMENTS
Section 10.1 Amendments. These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by
the stockholders or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of the stockholders or Board of Directors, as the case may be.
All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 10.2 Entire Board of Directors. As used in this Article X and in the Bylaws generally, the term “entire Board of
Directors” means the total number of directors which the Corporation would have if there were no vacancies.
* * *
Adopted as of: March 10, 2015
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