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Section 1: 8-K (8-K)

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of
the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 7, 2018 (November 2, 2018)

The Meet Group, Inc.
(Exact name of registrant as specified in its charter)

Delaware
(State or Other Jurisdiction of Incorporation)



        
001-33105
 
86-0879433
(Commission File Number)
 
(IRS Employer Identification No.)


100 Union Square Drive New Hope, Pennsylvania 18938
(Address of Principal Executive Offices) (Zip Code)

(Registrant’s Telephone Number, Including Area Code) (215) 862-1162
(Former Name or Address, if Changes Since Last Report): Not Applicable

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:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter). Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐


 


Item 5.03 Amendments to Articles of Incorporation or By-laws; Change in Fiscal Year.

On November 2, 2018, the Board of Directors (the “Board”) of The Meet Group, Inc., a Delaware corporation (the “Corporation”) approved amendments to amend and restate the Corporation’s By-laws (the “By-laws”). The By-laws were last amended on April 3, 2017.

The amendments to the By-laws are intended to, among other things (i) provide for orderly and transparent processes by which annual and special meetings of the stockholders are called, (ii) enhance the information that the Board has access to about the stockholders seeking to bring business before an annual or special meeting of the stockholders, the director nominees and/or other business proposed to be brought before the meeting by such stockholders, including, but not limited to, the information relating to the interests, objectives and potential conflicts of the proposing stockholder in proposing such director nominees and/or other business, so as to facilitate the ability of the Board to make informed voting recommendations to stockholders on any matter that will come before the meeting, (iii) enhance the information that the Board has access to from stockholders requesting that the Board set a record date for determining the stockholders entitled to request that a special meeting of stockholders be called, (iv) provide for appropriate procedural safeguards to ensure compliance with the spirit and intent of the By-laws’ advance notice requirements, (v) provide for orderly stockholders’ meetings, and (vi) address various matters relating to the Board, including provisions to enhance the Corporation’s pre-existing requirements that, in an uncontested election of directors, a director is only elected by a majority of the votes cast for such director at a stockholders’ meeting and the related resignation requirement for an incumbent director seeking re-election who does not receive such a required vote.

Set forth below is a summary of the amendments to the By-laws. Capitalized terms used but not defined herein have the meanings ascribed thereto in the By-laws.

Provisions Relating to Stockholders’ Meetings

Provide that at any annual meeting of stockholders only such business shall be considered as properly comes before it in accordance with the By-laws, the Corporation’s Amended and Restated Certificate of Incorporation, the Delaware General Corporation Law, and other applicable law.

Provide that at every stockholders’ meeting, the Chairman of the Board, if any, or if not, such person who is designated by the Board by resolution of the Board approved by the affirmative vote of a majority of the Entire Board, shall act as Presiding Officer and shall call all stockholders’ meetings to order.

Provide that any previously scheduled annual or special meeting may be postponed, and any previously scheduled annual or special meeting called by the Board may be canceled, by resolution of the Board approved by the affirmative vote of a majority of the Entire Board and upon public notice given prior to the time previously scheduled for such meeting.

Provide that business may be brought before an annual meeting by the Chairman of the Board, if any, but only if delegated that authority by a resolution of the Board approved by the affirmative vote of a majority of the Entire Board.




Provisions Relating to Advance Notices of Stockholder Proposals

Provide that for a proposal to be properly brought before any annual meeting by a stockholder, such proposal must be a proper subject for stockholder action, and be otherwise permitted pursuant to applicable law, the Certificate of Incorporation and the By-laws.

Provide that for a proposal to be properly brought before any annual meeting by a stockholder, the stockholder must not only provide a timely and proper notice to the Corporation, but must also provide any updates or supplements to such notice as required by the By-laws.

Require that a stockholder’s advance notice of proposed business include a description in reasonable detail of any contacts and discussions between any Proposing Person and any officer, director, affiliate, associate, or employee of the Corporation (naming such officer, director, affiliate, associate or employee and listing the dates and describing the nature of such contacts and discussions).

Require that a stockholder’s advance notice of proposed business include a description in reasonable detail of any plans or proposals of any Proposing Person relating to the Corporation that would be required to be disclosed by such Proposing Person pursuant to Item 4 of Schedule 13D if a Schedule 13D relating to the Corporation was filed with the SEC by such Proposing Person pursuant to the Exchange Act (regardless of whether the requirement to file a Schedule 13D with the SEC is applicable to such Proposing Person) together with a description of any agreements, arrangements or understandings (whether written or oral and whether formal or informal) that relate to such plans or proposals and naming all the parties to any such agreements, arrangements or understandings.

Provide that the disclosures required to be included in a Proposal Notice relating to a Proposing Person shall not include any such disclosures with respect to the ordinary course of business activities of any broker, dealer, commercial bank, or trust company who is deemed a Proposing Person solely as a result of being the stockholder directed to prepare and submit a Proposal Notice required by the By-laws on behalf of a beneficial owner of the shares held of record by such broker, dealer, commercial bank, or trust company and who is not otherwise affiliated or associated with such beneficial owner.

Require a Proposal Notice, if it includes a proposal to amend the By-laws, the Certificate of Incorporation or any Corporation policy, to include the text of the proposed amendment.

Provide that should any event, development or occurrence take place within ten (10) business days prior to the annual meeting which requires an update or supplement to the Proposal Notice, such update and supplement shall be received by the Secretary of the Corporation not later than one (1) business day following any such event, development or occurrence.

Provide that the Board can request a Proposing Person to provide the Corporation with an executed and notarized affidavit to demonstrate the accuracy of any information submitted by such Proposing Person.

Provide that, if the Proposing Person is not Present in Person at the annual meeting to present the proposed business described in the Proposal Notice, such proposed business shall be disregarded notwithstanding that proxies in respect of the vote on the proposed business may have been received by the Corporation.





Require that the By-laws’ disclosure requirements applicable to a Proposal Notice be directly and expressly responded to, require that a Proposal Notice include clear and express cross references indicating how the information disclosed is intended to be responsive to the By-laws’ disclosure requirements, and provide that any global cross-references in a Proposal Notice purporting to make any disclosure provided therein applicable to all of the By-laws’ disclosure requirements, regardless of the absence of any express cross-references, shall be disregarded.

Provide that any pre-existing documents, including documents previously filed with the SEC, cannot be incorporated by reference into a Proposal Notice in order to comply with advance notice requirements regarding what needs to be disclosed in a Proposal Notice.

Provide that, if the information included in a Proposal Notice by a Proposing Person is not true, correct and complete in all respects prior to the Proposal Notice Deadline, the Proposal Notice shall be deemed not to comply with the By-laws.

Provide that a Proposing Person submitting a Proposal Notice, by its delivery to the Corporation, acknowledges that it understands that nothing contained therein shall be considered confidential or proprietary information and that neither the Corporation, the Board, nor any agents or representatives thereof shall be restricted, in any manner, from publicly disclosing or using any of the information contained in a Proposal Notice.

Provide that the definition of a Proposing Person be expanded to include any spouse or family member of the stockholder submitting the Proposal Notice or, if different, the beneficial owner on whose behalf the Proposal Notice is given to the extent that such spouse or family member is involved in engaging with the Corporation on behalf of such stockholder or beneficial owner.

Provisions Relating to Special Meetings of Stockholders

Provide that any special meeting of stockholders shall be held at such date and time as may be fixed by resolution of the Board adopted by the affirmative vote of a majority of the Entire Board and otherwise in accordance with the By-laws, the DGCL and other applicable law.

Specify the requirements applicable to a stockholder seeking to nominate director candidates for election to the Board at a special meeting of stockholders, whether a Stockholder Requested Special Meeting or other special meeting of stockholders where the election of directors is a matter specified in the notice of meeting given by the person calling the special meeting, including, but not limited to, the requirements to be Present in Person at the meeting and to deliver a timely and proper advance notice of nominations in writing to the Secretary of the Corporation and provide updates and supplements to such notice in accordance with the By-laws.

Require that a Record Date Request Notice include a description in reasonable detail of any interest of any Requesting Person in such proposed business, including any anticipated benefit to any Requesting Person therefrom, including any interest that will be disclosed to the Corporation’s stockholders in any proxy statement to be distributed to the Corporation’s stockholders.

Require that a Record Date Request Notice include any information relating to the proposed business or nominees that would be required to be disclosed in a proxy statement or other filing required to be made with the SEC in connection with a contested solicitation of proxies by any Requesting Person in support of the business or nominees proposed to be brought before the Stockholder Requested



Special Meeting pursuant to Section 14(a) of the Exchange Act.

Require a Special Meeting Request Notice, if it includes a proposal to amend the By-laws, the Certificate of Incorporation or any Corporation policy, to include the text of the proposed amendment.

Require that the By-laws’ disclosure requirements applicable to a Record Date Request Notice or Special Meeting Request Notice, as the case may be, be directly and expressly responded to, require that any such request include clear and express cross references indicating how the information disclosed therein is intended to be responsive to the By-laws’ disclosure requirements, and provide that any global cross-references in any such request purporting to make any disclosure provided therein applicable to all of the By-laws’ disclosure requirements, regardless of the absence of any express cross-references, shall be disregarded.

Provide that any pre-existing documents, including documents previously filed with the SEC, cannot be incorporated by reference into a Record Date Request Notice or Special Meeting Request Notice, as the case may be, in order to comply with the informational requirements regarding what needs to be disclosed in any such Record Date Request Notice or Special Meeting Request Notice.

Provide that, if the information included in a Record Date Request Notice or Special Meeting Request Notice, as the case may be, is not true, correct and complete in all respects, any such Record Date Request Notice or Special Meeting Request Notice shall be deemed not to comply with the By-laws.

Provide that any person submitting a Record Date Request Notice or Special Meeting Request Notice, as the case may be, by its delivery to the Corporation, acknowledges that it understands that nothing contained therein shall be considered confidential or proprietary information and that neither the Corporation, the Board, nor any agents or representatives thereof shall be restricted, in any manner, from publicly disclosing or using any of the information contained in any such Record Date Request Notice or Special Meeting Request Notice.

Provide that the disclosures required to be included in a Record Date Request Notice or Special Meeting Request Notice, as the case may be, relating to a Requesting Person shall not include any such disclosures with respect to the ordinary course of business activities of any broker, dealer, commercial bank, or trust company who is deemed a Requesting Person solely as a result of being the stockholder directed to prepare and submit such request as required by the By-laws on behalf of a beneficial owner of the shares held of record by such broker, dealer, commercial bank, or trust company and who is not otherwise affiliated or associated with such beneficial owner.

Provide that the definition of a Requesting Person be expanded to include any spouse or family member of the stockholder submitting the Record Date Request Notice or, if different, the beneficial owner on whose behalf the Record Date Request Notice is given to the extent that such spouse or family member is involved in engaging with the Corporation on behalf of such stockholder or beneficial owner.

Provide that in addition to the requirements of the By-laws, each person submitting a Record Date Request Notice or a Special Meeting Request Notice, as the case may be, shall comply with all applicable requirements of the Exchange Act, the SEC, the DGCL and other applicable law with respect to any Record Date Request Notice, Special Meeting Request Notice, or Stockholder Requested Special Meeting, any solicitations of special meeting demands or proxies from the Corporation's stockholders in connection therewith, and any filings required to be made with the SEC



in connection with any of the foregoing.

Provisions Relating to Advance Notices of Director Nominations

Provide that for a director nomination to be properly brought before any stockholders’ meeting by a stockholder, the stockholder must not only provide a timely and proper notice to the Corporation, but must also provide any updates or supplements to such notice as are required by the By-laws.

Require that a Nominating Notice submitted to the Corporation be accompanied by a written questionnaire completed and signed by each Stockholder Nominee with respect to the background, qualifications and independence of each Stockholder Nominee (in the form provided by the Secretary of the Corporation upon written request).

Require that a Nominating Notice include all other information reasonably requested by the Corporation in order to permit the Board to determine that each Stockholder Nominee is independent under the listing standards of the principal U.S. exchange upon which the Corporation’s common stock is listed, any applicable SEC rules and any publicly disclosed standards used by the Board in determining the independence of the Corporation’s directors.

Provide that should any event, development or occurrence take place within ten (10) business days prior to the stockholders’ meeting which requires an update or supplement to the Nominating Notice, such update and supplement shall be received by the Secretary of the Corporation not later than one (1) business day following any such event, development or occurrence.

Provide that the Board can request a Nominating Person to provide the Corporation with an executed and notarized affidavit to demonstrate the accuracy of any information submitted by such Nominating Person.

Provide that, if the Nominating Person is not Present in Person at the stockholders’ meeting to present the proposed nominations described in the Nominating Notice, such proposed nominations shall be disregarded notwithstanding that proxies in respect of the vote on the proposed nominations may have been received by the Corporation.

Require that the By-laws’ disclosure requirements be directly and expressly responded to, require that a Nominating Notice include clear and express cross references indicating how the information disclosed is intended to be responsive to the By-laws’ disclosure requirements, and provide that any global cross-references in a Nominating Notice purporting to make any disclosure provided therein applicable to all of the By-laws’ disclosure requirements, regardless of the absence of any express cross-references, shall be disregarded.

Provide that any pre-existing documents, including documents previously filed with the SEC, cannot be incorporated by reference into a Nominating Notice in order to comply with advance notice requirements regarding what needs to be disclosed in a Nominating Notice.

Provide that, if the information included in a Nominating Notice by a Nominating Person is not true, correct and complete in all respects prior to the Nominating Notice Deadline, then the Nominating Notice shall be deemed to not comply with the By-laws.

Provide that a Nominating Person submitting a Nominating Notice, by its delivery to the Corporation,



acknowledges that it understands that nothing contained therein shall be considered confidential or proprietary information and that neither the Corporation, the Board, nor any agents or representatives thereof shall be restricted, in any manner, from publicly disclosing or using any of the information contained in a Nominating Notice.

Provide that the definition of a Nominating Person be expanded to include any spouse or family member of the stockholder submitting the Nominating Notice or, if different, the beneficial owner on whose behalf the Nominating Notice is given to the extent that such spouse or family member is involved in engaging with the Corporation on behalf of such stockholder or beneficial owner.

Provisions Relating to Board Matters

Provide that each person who is nominated to stand for election as director, whether such nomination is proposed by the Corporation or a stockholder, shall, as a condition to such nomination, tender an irrevocable and executed letter of resignation in advance of the meeting for the election of directors that would provide for such person to resign in the event he or she failed to receive a majority of the votes cast for such person.

Provide that the Secretary of the Corporation shall determine, based on whether one or more Nominating Notices were received by the Corporation and not withdrawn, whether a stockholders’ meeting is contested or uncontested for purposes of determining whether directors shall be elected by the majority of the votes cast or a plurality of the votes cast.

Require that any request by two or more directors to call a special meeting of the Board must be made in writing.

Provide that Board compensation shall be determined by resolution of the Board approved by the affirmative vote of a majority of the Entire Board.

Other Revisions

Incorporate into the By-law various other “clean-up” changes, including, but not limited to, grammatical and other typographical corrections, formatting changes, revisions to headings, titles and captions, and providing capitalized definitions for certain terms.

The foregoing description of the various amendments included in the By-laws does not purport to be complete and is qualified in its entirety by reference to the complete text of the By-laws adopted by the Board on November 2, 2018, a copy of which is attached to this Current Report on Form 8-K as Exhibit 3.1 and incorporated by reference in this Item 5.03 in its entirety.




Item 9.01
 
        Financial Statements and Exhibits.
 
 
 
(d) Exhibits
 
See the Exhibit Index below, which is incorporated by reference herein.
 
 
 
EXHIBIT INDEX
Exhibit Number
 
Description
 
Amended and Restated By-laws of The Meet Group, Inc., amended and restated as of November 2, 2018.




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.
 
 
 
THE MEET GROUP, INC.
 
 
(Registrant)
 
 
 
Date:
November 7, 2018
By: /s/ Geoff Cook
 
 
Name: Geoff Cook
Title: Chief Executive Officer


(Back To Top)

Section 2: EX-3.1 (AMENDED AND RESTATED BYLAWS)

Exhibit







395678334_meetgroup.jpg
AMENDED AND RESTATED
BY-LAWS
OF
THE MEET GROUP, INC.
A Delaware Corporation
As adopted on and with effect from November 2, 2018






TABLE OF CONTENTS



 
 
Page

 
 
 
ARTICLE I.
MEETING OF STOCKHOLDERS
1

Section 1.
Annual Meeting
1

Section 2.
Notice
2

Section 3.
Notice of Adjourned Meetings
3

Section 4.
Record Date
3

Section 5.
Quorum
3

Section 6.
Voting
4

Section 7.
Proxies
4

Section 8.
Stockholder List
5

Section 9.
Meetings by Remote Communication
5

Section 10.
Inspectors of Election
6

Section 11.
Organization and Conduct of the Stockholders’ Meeting
6

Section 12
Postponements and Cancellation of Meetings
7

Section 13.
Introduction of Business at a Meeting of Stockholders
7

Section 14.
Special Meetings
16

 
 
 
ARTICLE II.
Directors
24

Section 1.
General Powers
24

Section 2.
Qualifications
24

Section 3.
Organization
24

Section 4.
Number of Directors
24

Section 5.
Term
24

Section 6.
Majority Voting in the Election of Directors
25

Section 7.
Resignations
26

Section 8.
Removal of Directors
26

Section 9.
Vacancies
26

Section 10.
Quorum and Manner of Acting
26

Section 11.
Place of Meeting
27

Section 12
Regular Meetings
27

Section 13.
Special Meetings
27

Section 14.
Meetings by Electronic Communications Equipment
27

Section 15.
Action Without a Meeting
27





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TABLE OF CONTENTS
(continued)

 
 
Page

 
 
 
Section 16.
Nomination of Directors
28

Section 17.
Compensation
35

Section 18.
Committees
35

 
 
 
ARTICLE III.
OFFICERS
36

Section 1.
Officers Designated
36

Section 2.
Tenure And Duties of Officers
36

Section 3.
Delegation Of Authority
37

Section 4.
Resignations
37

Section 5.
Removal
38

 
 
 
ARTICLE IV.
STOCK CERTIFICATES
38

Section 1.
Form And Execution Of Certificates
38

Section 2.
Lost Certificates
38

Section 3.
Transfers
38

Section 4.
Registered Stockholders
38

 
 
 
ARTICLE V.
BOOKS AND RECORDS
39

 
 
 
ARTICLE VI.
DIVIDENDS
39

Section 1.
Declaration Of Dividends
39

Section 2.
Dividend Reserve
39

 
 
 
ARTICLE VII.
CORPORATE SEAL
39

 
 
 
ARTICLE VIII.
AMENDMENT
39

 
 
 
ARTICLE IX.
GOVERNING LAW; EXCLUSIVE FORUM
40

 
 
 
ARTICLE X.
GENERAL PROVISIONS
40

Section 1.
Section Headings
40

Section 2.
Gender
40

Section 3.
Time Periods
40

Section 4.
Evidence of Authority
40

Section 5.
Certificate of Incorporation
40

Section 6.
By-law Provisions Additional and Supplemental to Provisions of Law
40

Section 7.
Interpretation
41

Section 8.
Inconsistent Provisions
41


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TABLE OF CONTENTS
(continued)

 
 
Page

 
 
 
Section 9.
Severability
41





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395678334_meetgroup.jpg

AMENDED AND RESTATED

BY-LAWS

OF

THE MEET GROUP, INC.
A Delaware Corporation
(the “Corporation”)

As adopted on and with effect from November 2, 2018

Article I. Meeting of Stockholders

Section 1.    Annual Meeting. An annual meeting of the stockholders, for the election of directors to succeed those directors whose terms expire at such meeting (or, if fewer, the number of directors properly nominated and qualified for election) and for the transaction of such other business as may properly come before the meeting in accordance with the requirements of these By-laws, the Corporation’s Amended and Restated Certificate of Incorporation, as amended (the “Certificate of Incorporation”), the Delaware General Corporation Law, as amended (the “DGCL”), and other applicable law, shall be held at such place (within or without the State of Delaware), on such date (which date shall not be a legal holiday in the place where the meeting is to be held and if held over the Internet or other electronic technology, which date shall not be a federal holiday), and at such time as shall be designated from time to time by (i) resolution of the Board of Directors (the “Board”) adopted by the affirmative vote of a majority of the total number of authorized directors, whether or not there exist any vacancies in previously authorized directorships at the time such resolution is presented to the Board for adoption (the “Entire Board”), (ii) resolution of a duly authorized committee of the Board, or (iii) the Chairman of the Board, if any, and if delegated that authority by a resolution of the Board adopted by the affirmative vote of a majority of the Entire Board and stated in the notice of meeting. The Board may, in its sole discretion, determine, by resolution of the Board approved by a majority of the Entire Board, that an annual meeting shall not be held at any place, but shall instead be held solely by means of remote communication as provided under the DGCL and in Article I, Section 9 below. Any and all references hereafter in these By-laws to an annual meeting or annual meetings shall also be deemed to refer to any special meeting(s) called in lieu thereof in accordance with these By-laws.

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Section 2.    Notice.

(a)    Written or electronic notice stating the place, date and hour of the meeting of stockholders and, in the case of a special meeting, the purpose or purposes for which the meeting has been called, shall be delivered not less than ten (10) nor more than sixty (60) calendar days before the meeting, by personal delivery, mail, or, with the consent of the stockholder entitled to receive notice, by facsimile, electronic mail or other means of electronic transmission, by or at the direction of the Chief Executive Officer, the Secretary, or the officer or persons calling the meeting, to each stockholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail addressed to the stockholder at the stockholder’s address as it appears on the stock transfer books of the Corporation, with postage prepaid thereon.

(b)    Notice given by electronic transmission pursuant to this section shall be deemed given: (1) if by facsimile telecommunication, when directed to a facsimile telecommunication number at which the stockholder has consented to receive notice; (2) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (3) if by posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (4) if by any other form of electronic transmission, when directed to the stockholder. Notice given by electronic transmission shall only be valid if it complies with Section 232 of the DGCL. In accordance with Section 222 of the DGCL, an affidavit of the Secretary or an Assistant Secretary or of the transfer agent or other agent of the Corporation that the notice has been given by personal delivery, by mail, or by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

(c)    Notice of any meeting of stockholders need not be given to any stockholder if waived by such stockholder either in a writing signed by such stockholder or by electronic transmission, whether such waiver is given before or after such meeting is held. If such a waiver is given by electronic transmission, the electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder. Attendance of a person at a meeting, whether in person, by remote communication, if applicable, or by proxy, shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the stockholders need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by the Certificate of Incorporation or these By-laws. Any person so waiving notice of such a meeting shall be bound by the proceedings of any such meeting in all respects as if due notice thereof had been given.

(d)    Except as otherwise prohibited under the DGCL, without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under the provisions of the DGCL, the Certificate of Incorporation or these By-laws shall be effective if given by a single written notice to stockholders who share an

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address if (a) consented to by the stockholders at that address to whom such notice is given, or (b) the Corporation complies with the provisions of Rule 14a-3(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The stockholder consent referenced in the immediately preceding sentence shall be revocable by the stockholder by written notice to the Corporation. Any stockholder who fails to object in writing to the Corporation, within sixty (60) calendar days of having been given written notice by the Corporation of its intention to send the single notice, shall be deemed to have consented to receiving such single written notice.

Section 3.    Notice of Adjourned Meetings. When a meeting is adjourned to another time or place, unless these By-laws otherwise require, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting 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) calendar days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, then the Board shall fix a new record date for notice of such adjourned meeting in accordance with Section 213(a) of the DGCL and Article I, Section 4 of these By-laws, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.

Section 4.    Record Date. The Board may by resolution of the Board adopted by the affirmative vote of a majority of the Entire Board fix in advance a date as a record date for the determination of the stockholders entitled to notice of and to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividends or other distribution, or to exercise the rights in respect to any change, conversion, or exchange of capital stock, and in such case only stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, or to receive payment of such dividend or other distribution, or allotment of any rights, or exercise such rights, as the case may be, and notwithstanding any transfer of any stock on the books of the Corporation after any such record date fixed as herein provided. In no event may any such record date: (i) be more than sixty (60) calendar days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date when any change or conversion or exchange of capital stock shall go into effect, or (ii) precede the date upon which the resolution fixing the record date is adopted by the Board. A determination of stockholders of record entitled to notice of or to vote at any meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting by resolution of the Board adopted by the affirmative vote of a majority of the Entire Board.

Section 5.    Quorum. Except as otherwise expressly required by applicable law, by the Certificate of Incorporation or these By-laws, the presence, in person, by remote communication, if applicable, or by proxy duly authorized, of the holders of a majority of the outstanding shares of stock entitled to vote shall constitute a quorum for the transaction of business at any meeting of the stockholders of the Corporation or any adjournment thereof. The stockholders present at a duly called or convened meeting at which a quorum is present, may continue to transact business until

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adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. In the absence of a quorum at any such meeting or any adjournment or adjournments thereof, a majority in voting interest of those present in person or by proxy and entitled to vote thereat, or any officer entitled to preside at, or to act as secretary of, such meeting may adjourn such meeting until stockholders holding the amount of stock requisite for a quorum are present in person or by proxy.

Section 6.    Voting.

(a)    Unless otherwise provided in the Certificate of Incorporation, each outstanding share, regardless of class, shall be entitled to one vote on each matter submitted to a vote at a meeting of stockholders, except as may be otherwise provided in a certificate of designation filed with the Secretary of State of the State of Delaware.

(b)    All voting, including on the election of directors but excepting where otherwise required by applicable law or the Certificate of Incorporation, may take place via a voice vote. The Board, in its discretion, or the Presiding Officer (as defined below), in his or her discretion, may require that any votes cast at a meeting of stockholders shall be cast by written ballot.

(c)     For all matters other than the election of directors, except as otherwise provided by the DGCL or other applicable law, by applicable stock exchange rules, by the Certificate of Incorporation or these By-laws, if a quorum is present, all actions taken by the holders of a majority of the votes cast on a matter, excluding abstentions, shall be the act of the stockholders, and when approval of a class or series is required the affirmative vote of the majority of the votes cast on a matter, excluding abstentions, by the holders of shares of such class or series shall be the act of such class or series.

Section 7.    Proxies.
  
(a)    At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing or by an electronic transmission permitted by applicable law (which shall include any means of electronically transmitted written copy which sets forth or is submitted with information from which it can be determined that the electronic transmission was duly authorized by the person) filed in accordance with the procedures established for the meeting, and executed by the stockholder himself or herself or by his or her duly authorized attorney-in-fact.

(b)    No proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. The revocability of a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL.

(c)    The authority of the holder of a proxy to act shall not be revoked by the incompetence or death of the stockholder who executed the proxy unless, before the authority is exercised, written notice of an adjudication of such incompetence or of such death is received by the corporate officer responsible for maintaining the list of stockholders.


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(d)    If a proxy for the same shares confers authority upon two (2) or more persons and does not otherwise provide, a majority of them present at the meeting, or if only one is present then that one, may exercise all the powers conferred by the proxy; but if the proxy holders present at the meeting are equally divided as to the right and manner of voting in any particular case, the voting of such shares shall be prorated.

(e)    If a proxy expressly provides, any proxy holder may appoint in writing a substitute to act in his or her place.

Section 8.    Stockholder List. The Secretary shall prepare and make, at least ten (10) calendar days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) calendar days before the meeting date, then the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date. The stockholder list shall be arranged in alphabetical order and show the address of each stockholder and the number of shares registered in the name of each stockholder. The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least ten (10) calendar days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a physical location, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communications, then the list shall be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section 8 or the books of the Corporation, to vote in person or by proxy at any meeting of stockholders and the number of shares held by each stockholder.

Section 9.    Meetings by Remote Communication. If authorized by the Board, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication, participate in the meeting and be deemed present in person and vote at the meeting, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (i) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder, (ii) the Corporation shall implement reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (iii) if any stockholder or proxy holder votes

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or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.

Section 10.    Inspectors of Election.

(a)    The Corporation may, in advance of any meeting of stockholders, appoint one or more inspectors of election to act at the meeting and make a written report thereof. If no such appointment shall be made, or if any of the inspectors so appointed shall fail to attend, or refuse or be unable to serve, then such appointment may be made by the Presiding Officer of the meeting at the meeting or any adjournment thereof. No director or candidate for the office of director shall act as an inspector of an election of directors. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such person’s ability.

(b)    If appointed, the inspectors shall ascertain the number of shares outstanding and the voting power of each; determine the shares represented at the meeting and the validity of proxies and ballots; ascertain the existence of a quorum; count all votes and ballots; determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by them; certify their determination of the number of shares represented at the meeting, and their count of all votes and ballots; and do such acts as are proper to conduct the election or vote with fairness to all stockholders. In determining the validity and counting of all proxies and ballots, the inspectors shall act in accordance with applicable law. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting. No ballots, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the inspectors after the closing of the polls. On request of the Presiding Officer at the meeting, the inspectors shall make a report in writing of any challenge, request or matter determined by them and shall execute a certificate of any fact found by them.

Section 11.    Organization and Conduct of the Stockholders’ Meeting.

(a)    At every meeting of the stockholders, the Chairman of the Board, if there is such an officer, or if not, such person who is designated by the Board by resolution of the Board approved by the affirmative vote of a majority of the Entire Board, shall act as Presiding Officer (the “Presiding Officer”) and shall call all meetings to order. The Secretary shall act as secretary of all meetings of the stockholders; and in the absence of the Secretary, an Assistant Secretary, if any, shall act as secretary of such meeting of the stockholders; and in the absence of the Secretary or any Assistant Secretary, the Presiding Officer may appoint any person to act as secretary of the meeting.

(b)    To the maximum extent permitted by applicable law, the Board shall be entitled to adopt, or in the absence of the Board doing so, the Presiding Officer shall be entitled to prescribe, such rules, regulations or procedures for the conduct of meetings of stockholders as it, he or she shall deem appropriate. Such rules, regulations and procedures that the Board or the

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chairman of any meeting of stockholders may adopt include, without limitation: (1) establishing an agenda for the meeting and the order for the consideration of the items of business on such agenda, (2) restricting admission to the time set for the commencement of the meeting, (3) limiting attendance at the meeting to stockholders of record of the Corporation entitled to vote at the meeting, their duly authorized proxies or other such persons as the Presiding Officer may determine, (4) limiting participation at the meeting on any matter to stockholders of record of the Corporation entitled to vote on such matter, their duly authorized proxies or other such persons as the Presiding Officer may determine to recognize and, as a condition to recognizing any such participant, requiring such participant to provide the Presiding Officer with evidence of his or her name and affiliation, whether he or she is a stockholder or a proxy for a stockholder, and the class and series and number of shares of each class and series of capital stock of the Corporation which are owned beneficially and/or of record by such stockholder, (5) limiting the time allotted to questions or comments by participants, (6) taking such actions as are necessary or appropriate to maintain order, decorum, safety and security at the meeting, (7) removing any stockholder who refuses to comply with meeting procedures, rules or guidelines as established by the Presiding Officer, (8) complying with any state and local laws and regulations concerning safety and security, (9) restricting use of audio or video recording devices at the meeting, and (10) taking such other action as, in the discretion of the Presiding Officer, is deemed necessary, appropriate or convenient for the proper conduct of the meeting.

(c)    Unless and to the extent determined by the Board or the Presiding Officer, meetings of stockholders shall not be required to be held in accordance with rules of parliamentary procedure.

(d)    The Presiding Officer shall also conduct the meeting in an orderly manner, rule on the precedence of and procedure on, motions and other procedural matters, and exercise discretion with respect to such procedural matters with fairness and good faith toward all those entitled to take part. Should any person in attendance become unruly or obstruct the meeting proceedings, the Presiding Officer shall have the power to have such person removed from participation.

Section 12.    Postponement and Cancellation of Meetings. Any previously scheduled annual or special meeting of the stockholders may be postponed, and any previously scheduled annual or special meeting of the stockholders called by the Board may be canceled, by resolution of the Board approved by the affirmative vote of a majority of the Entire Board and upon public notice given prior to the time previously scheduled for such meeting of stockholders.

Section 13.    Introduction of Business at a Meeting of Stockholders.

(a)    Business Before Annual Meeting. Except as otherwise provided by the DGCL or other applicable law, at an annual meeting of stockholders, no business shall be transacted and no corporate action shall be proposed or taken except as shall have been properly brought before the annual meeting in accordance with the DGCL and other applicable law, the Certificate of Incorporation and these By-laws. The only means by which business may be properly brought before an annual meeting are if such business is (i) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorized committee thereof), (ii)

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if not specified in the notice of meeting (or any supplement thereto) provided by or at the direction of the Board (or any duly authorized committee thereof), otherwise properly brought before the annual meeting by or at the direction of the Board (or any duly authorized committee of the Board) or the Chairman of the Board, if any, and if delegated that authority by a resolution of the Board approved by the affirmative vote of a majority of the Entire Board), or (iii) brought before the annual meeting by a stockholder Present in Person at the meeting who (A) was the beneficial owner of shares of the Corporation’s stock entitled to vote at the annual meeting as of the time of the delivery of the Proposal Notice, on the record date for the determination of stockholders entitled to notice of, and to vote at, the annual meeting and as of the time of the annual meeting, (B) is entitled to vote at such annual meeting, and (C) has complied with this Article I, Section 13 in all applicable respects. Notwithstanding the foregoing, stockholders seeking to nominate persons for election to the Board must comply with Article II, Section 16 of these By-laws and, other than defined terms, this Article I, Section 13 shall not be applicable to the nominations of directors.

(b)    Advance Notice of Stockholder Business.

(i)    Stockholder Proposals. Except with respect to nominations for election to the Board, which must be made in compliance with the provisions of Article II, Section 16 of these By-laws, and except for a stockholder proposal properly made in accordance with Rule 14a-8 of the Exchange Act (and the SEC’s and SEC Staff’s interpretations, guidance and no-action letters thereunder) and which proposals are not excludable under Rule 14a-8 of the Exchange Act, whether pursuant to a no-action letter from the Staff of the SEC’s Division of Corporation Finance or a determination of a federal court of competent jurisdiction, and which are included in the notice of meeting given by or at the direction of the Board (or any duly authorized committee thereof) and the Corporation’s proxy statement pursuant to Rule 14a-8 of the Exchange Act, for a proposal to be properly brought before any annual meeting of stockholders by a stockholder, in addition to the requirements of Article I, Section 13(a) of these By-laws, such proposal must be a proper subject for stockholder action and otherwise be permitted pursuant to applicable law, the Certificate of Incorporation and these By-laws, and the stockholder must (i) have given timely notice thereof in writing to the Secretary in proper form (the “Proposal Notice”), (ii) provide any updates or supplements to such Proposal Notice at the times and in the forms required by this Article I, Section 13, and (iii) comply with the notice and other procedures set forth in this Article I, Section 13(b) in all applicable respects. To be timely, the Proposal Notice must be delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation not earlier than the close of business on the one hundred and fiftieth (150th) calendar day and not later than the close of business on the one hundred and twentieth (120th) calendar day prior to the one-year anniversary date of the immediately preceding year’s annual meeting of stockholders or special meeting in lieu thereof (the “Anniversary Date”); provided, however, that in the event that the date of the annual meeting of stockholders is more than thirty (30) calendar days before or more than sixty (60) calendar days after the Anniversary Date, or if the Corporation did not hold an annual meeting of stockholders or special meeting in lieu thereof in the preceding fiscal year, notice by the stockholder to be timely must be so delivered to, or mailed and received by, the Secretary of the Corporation not later than the later of (i) the close of business on the ninetieth (90th) calendar day prior to such annual meeting or (ii) the close of business on the tenth (10th) calendar day following the day on which public disclosure of the date of such annual meeting was first made by the

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Corporation (or if that day is not a business day for the Corporation, on the next succeeding business day). In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above.

(ii)    Required Form of Proposal Notice. To be in proper form, the Proposal Notice shall set forth in writing:

(1)    Information Regarding each Proposing Person. As to each Proposing Person:

(a)    the name and address of such Proposing Person, as they appear on the Corporation’s stock transfer books;

(b)    the class, series and number of shares of the Corporation directly or indirectly beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) and/or held of record by such Proposing Person (including any shares of any class or series of the Corporation as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future, whether such right is exercisable immediately, only after the passage of time or only upon the satisfaction of certain conditions precedent);

(c)    a description in reasonable detail of any pending, or to such Proposing Person’s knowledge, threatened legal proceeding in which any Proposing Person is a party or participant involving the Corporation or any officer, director “affiliate” (for purposes of these By-laws, as such term is used by Rule 12b-2 under the Exchange Act) or “associate” (for purposes of these By-laws, as such term is used by Rule 12b-2 under the Exchange Act) of the Corporation;

(d)    a description in reasonable detail of any relationship (including any direct or indirect interest in any agreement, arrangement or understanding, whether written or oral and whether formal or informal) between any Proposing Person and the Corporation or any director, officer, affiliate, associate, or employee of the Corporation;

(e)    a description in reasonable detail of any contacts and discussions between any Proposing Person and any officer, director, affiliate, associate, or employee of the Corporation (naming such officer, director, affiliate, associate or employee and listing the dates and describing the nature of such contacts and discussions);

(f)    the full notional amount of any securities that, directly or indirectly, underlie any “derivative security” (as such term is defined in Rule 16a-1(c) under the Exchange Act) that constitutes a “call equivalent position” (as such term is defined in Rule 16a-1(b) under the Exchange Act) (together, a “Synthetic Equity Position”) and that is, directly or indirectly, held or maintained by such Proposing Person with respect to any shares of any class or series of shares of the Corporation; provided that, for the purposes of the definition of “Synthetic Equity Position,” the term “derivative security” shall also include any security or instrument that would not otherwise constitute a “derivative security” (as such term is defined in Rule 16a-1(c) under the

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Exchange Act) as a result of any feature that would make any conversion, exercise or similar right or privilege of such security or instrument becoming determinable only at some future date or upon the happening of a future occurrence, in which case the determination of the amount of securities into which such security or instrument would be convertible or exercisable shall be made assuming that such security or instrument is immediately convertible or exercisable at the time of such determination; and, provided, further, that any Proposing Person satisfying the requirements of Rule 13d-1(b)(1) under the Exchange Act (other than a Proposing Person that so satisfies Rule 13d-1(b)(1) under the Exchange Act solely by reason of Rule 13d-1(b)(1)(ii)(E)) shall not be deemed to hold or maintain the notional amount of any securities that underlie a Synthetic Equity Position held by such Proposing Person as a hedge with respect to a bona fide derivatives trade or position of such Proposing Person arising in the ordinary course of such Proposing Person’s business as a derivatives dealer;

(g)    a description in reasonable detail of any agreement, arrangement or understanding (including any short position or any borrowing or lending of shares of stock), written or oral and formal or informal, that has been made by or on behalf of such Proposing Person, the effect or intent of any of the foregoing being to mitigate loss to, or to manage risk of stock price changes for, any Proposing Person or to increase or decrease the voting power or pecuniary or economic interest of such Proposing Person or any of its affiliates or associates with respect to stock of the Corporation;

(h)    a description in reasonable detail of any proxy, contract, arrangement, understanding or relationship, written or oral and formal or informal, between such Proposing Person and any other person or entity (naming each such person or entity) pursuant to which the Proposing Person has a right to vote any shares of the Corporation;

(i)    a description in reasonable detail of any rights to dividends on the shares of any class or series of shares of the Corporation directly or indirectly held of record or beneficially by such Proposing Person that are separated or separable from the underlying shares of the Corporation;

(j)    a description in reasonable detail of any performance-related fees (other than an asset-based fee) to which the Proposing Person may be entitled as a result of any increase or decrease in the value of shares of the Corporation or any of its derivative securities;

(k)    a description in reasonable detail of any direct or indirect interest of such Proposing Person in any contract or agreement, written or oral and formal or informal, with the Corporation, or any affiliate or associate of the Corporation (naming such affiliate or associate);

(l)    a description in reasonable detail of all agreements, arrangements and understandings, written or oral and formal or informal, (1) between or among any of the Proposing Persons or (2) between or among any Proposing Person and any other person or entity (naming each such person or entity) in connection with or related to the proposal of business by a stockholder, including without limitation (A) any understanding, formal or informal, written

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or oral, that any Proposing Person may have reached with any stockholder of the Corporation (including their names) with respect to how such stockholder will vote its shares in the Corporation at any meeting of the Corporation’s stockholders or take other action in support of or related to any business proposed, or other action to be taken, by any Proposing Person, and (B) any agreements that would be required to be disclosed by any Proposing Person or any other person or entity pursuant to Item 5 or Item 6 of a Schedule 13D that would be filed with the SEC pursuant to the Exchange Act and the rules and regulations promulgated thereunder (regardless of whether the requirement to file a Schedule 13D is applicable to such Proposing Person or other person or entity);

(m)    a description in reasonable detail of any plans or proposals of any Proposing Person relating to the Corporation that would be required to be disclosed by such Proposing Person pursuant to Item 4 of Schedule 13D if a Schedule 13D relating to the Corporation was filed with the SEC by such Proposing Person pursuant to the Exchange Act (regardless of whether the requirement to file a Schedule 13D with the SEC is applicable to such Proposing Person) together with a description of any agreements, arrangements or understandings (whether written or oral and whether formal or informal) that relate to such plans or proposals and naming all the parties to any such agreements, arrangements or understandings;

(n)    all other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing made with the SEC in connection with any contested solicitation of proxies by any Proposing Person in support of the proposed business described in the Proposal Notice pursuant to Section 14(a) and Regulation 14A under the Exchange Act;

(o)    a representation as to whether any Proposing Person intends to deliver a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock entitled to vote and required to approve the proposed business described in the Proposal Notice and, if so, identifying each such Proposing Person; and

(p)    a representation that the Proposing Person delivering the Proposal Notice intends to be Present in Person at the meeting to propose the business specified in the Proposal Notice and to vote all proxies solicited;

; provided, however, that the disclosures required by this Article I, Section 13(b)(ii)(1) shall not include any such disclosures with respect to the ordinary course of business activities of any broker, dealer, commercial bank, or trust company who is deemed a Proposing Person solely as a result of being the stockholder directed to prepare and submit a Proposal Notice required by these By-laws on behalf of a beneficial owner of the shares held of record by such broker, dealer, commercial bank, or trust company and who is not otherwise affiliated or associated with such beneficial owner.

(2)    Information Regarding the Proposed Business: As to each item of business that the Proposing Person giving the Proposal Notice proposes to bring before the annual meeting:


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(a)    a description in reasonable detail of the business desired to be brought before the meeting;

(b)     a description in reasonable detail of the reasons (including the text of any reasons for the business that will be disclosed in any proxy statement or supplement thereto to be filed with the SEC) detailing why such Proposing Person believes that the taking of the action or actions proposed to be taken would be in the best interests of the Corporation and its stockholders;

(c)    the text of the proposal or business (including, if applicable, the text of any resolutions proposed for consideration and in the event such business includes a proposal to amend these By-laws, the Certificate of Incorporation or any policy of the Corporation, the text of the proposed amendment);

(d)    a description in reasonable detail of any interest, direct or indirect, monetary or non-monetary, of any Proposing Person in such business, including any anticipated benefit to the Proposing Person therefrom, including any interest that will be disclosed to the Corporation’s stockholders in any proxy statement to be distributed to the Corporation’s stockholders); and

(e)    all other information relating to the proposed business described in the Proposal Notice that would be required to be disclosed in a proxy statement or other filing made with the SEC pursuant to Section 14(a) and Regulation 14A under the Exchange Act in connection with a contested solicitation of proxies in support of such proposed business in which any Proposing Person is a participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A, or any successor instructions).

(iii)    Updating of Proposal Notice.

(1)    A Proposing Person providing a Proposal Notice shall update and supplement its Proposal Notice, as necessary, from time to time, so that the information provided or required to be provided in such Proposal Notice pursuant to this Article I, Section 13(b) shall be true, correct and complete in all respects not only prior to the Proposal Notice Deadline but also at all times thereafter and prior to the annual meeting, and such update and supplement shall be received by the Secretary of the Corporation not later than the earlier of (A) five (5) business days following the occurrence of any event, development or occurrence which would cause the information provided in the Proposal Notice to be not true, correct and complete in all respects, and (B) ten (10) business days prior to the meeting at which the proposed business described in such Proposal Notice is to be considered; provided, however, that should any such event, development or occurrence take place within ten (10) business days prior to such meeting, such update and supplement shall be received by the Secretary of the Corporation not later than one (1) business day following any such event, development or occurrence. If the information submitted pursuant to this Article I, Section 13(b) by any Proposing Person in a Proposal Notice shall not be true, correct and complete in all respects prior to the Proposal Notice Deadline, such information may be deemed not to have been provided in accordance with this Article I, Section 13(b). For the avoidance of doubt, the updates required

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pursuant to this Article I, Section 13(b) do not cause a Proposal Notice that was not in compliance with this Article I, Section 13(b) when first delivered to the Corporation prior to the Proposal Notice Deadline to thereafter be in proper form in accordance with this Article I, Section 13.

(2)    Upon written request by the Secretary of the Corporation, the Board or any duly authorized committee thereof, any Proposing Person who has submitted a Proposal Notice to the Corporation shall provide, within five (5) business days of delivery of such request (or such other period as may be specified in such request), written verification, in a form and manner, including, if requested, an executed and notarized affidavit, satisfactory in the reasonable discretion of the Board, any duly authorized committee thereof or any duly authorized officer of the Corporation, to demonstrate the accuracy of any information submitted by such Proposing Person in the Proposal Notice delivered pursuant to this Article I, Section 13(b). If a Proposing Person fails to provide such written verification within such period and in the form requested, the information as to which written verification was requested may be deemed not to have been provided in accordance with this Article I, Section 13(b).

(iv)    Exclusive Means. Except for proposals properly made in accordance with Rule 14a-8 under the Exchange Act and included in the Corporation’s notice of meeting and proxy statement and other than nominations for election to the Board which must comply with the provisions of Article II, Section 16 hereof, this Article I, Section 13 shall be the exclusive means for any stockholder of the Corporation or beneficial owner of the Corporation’s capital stock to propose business to be brought before an annual meeting of stockholders and no business shall be conducted at any annual meeting that is not properly brought before the meeting in accordance with this Article I, Section 13.

(v)    Effect of Non-Compliance. If the Presiding Officer shall determine, based on the facts and circumstances and in consultation with counsel (who may be the Corporation’s internal counsel), that such business was not properly brought before the meeting in accordance with this Article I, Section 13, then the Presiding Officer shall so declare such determination to the meeting and not permit such business to be transacted at such meeting. In addition, business proposed to be brought by a stockholder may not be brought before an annual meeting if such stockholder takes action contrary to the representations made in its Proposal Notice or if such Proposal Notice contains an untrue statement of a fact or omits to state a fact necessary to make the statements therein not misleading. Notwithstanding anything in this Article I, Section 13 to the contrary, unless otherwise required by applicable law, if the Proposing Person is not Present in Person at the annual meeting to present the proposed business described in the Proposal Notice, such proposed business shall be disregarded, notwithstanding that proxies in respect of the vote on the proposed business may have been received by the Corporation.

(vi)    Certain Definitions. For purposes of these By-laws, the following definitions shall be applicable:

(1)    A person shall be deemed to be “Acting in Concert” with another person if such person knowingly acts (whether or not pursuant to an express agreement, arrangement or understanding) in concert with, or towards a, common goal relating to the leadership,

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management, board composition, governance, strategic direction, value enhancement plans, or control of the Corporation in parallel with, such other person where (A) each person is conscious of the other person’s conduct or intent and this awareness is an element in their decision-making processes, and (B) at least two additional factors suggest that such persons knowingly intend to act in concert or in parallel with, or towards a, common goal, which such additional factors may include, without limitation, exchanging information (whether publicly or privately), attending meetings, conducting discussions, or making or soliciting invitations to act in concert or in parallel; provided, however, that a person shall not be deemed to be Acting in Concert with any other person solely as a result of the solicitation or receipt of revocable proxies or special meeting demands from such other person in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a proxy statement filed with the SEC on Schedule 14A. A person Acting in Concert with another person shall be deemed to be Acting in Concert with any third party who is also Acting in Concert with such other person.

(2)    Close of business” shall mean 5:00 p.m. local time at the principal executive offices of the Corporation on any calendar day, whether or not such day is a business day.

(3)    Present in Person” shall mean that the stockholder proposing that the business be brought before the annual meeting of the Corporation, or, if the proposing stockholder is not an individual, a qualified representative of such proposing stockholder, appear in person at such annual meeting (unless such meeting is held by means of remote communication in which case the proposing stockholder or its qualified representative shall be present at such annual meeting by means of remote communication).

(4)    Proposal Notice Deadline” shall mean the last date for a stockholder to deliver a Proposal Notice in accordance with the provisions of this Article I, Section 13(b).

(5)    Proposing Person” means (i) the stockholder providing the Proposal Notice; (ii) the beneficial owner or beneficial owners of the Corporation’s capital stock, if different, on whose behalf the Proposal Notice is given; (iii) any affiliate or associate (as defined under Rule 12b-2 of the Exchange Act) of such stockholder or beneficial owner; (iv) the spouse or other family member of such stockholder or beneficial owner to the extent that such spouse or other family member is involved in engaging with the Corporation on behalf of such stockholder or beneficial owner; (v) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A, or any successor instructions) with such stockholder or beneficial owner in such solicitation of proxies in respect of the proposals described in the Proposal Notice; (vi) any person who is a member of a “group” (for purposes of these By-laws, as such term is used in Rule 13d-5 under the Exchange Act) with any such stockholder or beneficial owner (or their respective affiliates and associates); and (vii) any other person with whom such stockholder or beneficial owner (or any of their respective affiliates or associates) is Acting in Concert.

(6)    Public disclosure” or its corollary “publicly disclosed” shall mean (i) disclosure by the Corporation in a document filed or furnished by it with the SEC, (ii) in

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a press release issued by the Corporation and distributed through a national news or wire service, or (iii) another method reasonably intended by the Corporation to achieve broad-based dissemination of the information contained therein.

(7)    Qualified representative” means (i) if the stockholder is a corporation, any duly authorized officer of such corporation, (ii) if the stockholder is a limited liability company, any duly authorized member, manager or officer of such limited liability company, (iii) if the stockholder is a partnership, any general partner or person who functions as general partner for such partnership, (iv) if the stockholder is a trust, the trustee of such trust, or (v) if the stockholder is an entity other than the foregoing, the persons acting in such similar capacities as the foregoing with respect to such entity.

(8)    “SEC” means the U.S. Securities and Exchange Commission and any successor agency or instrumentality of the United States government.

(vii)    Referencing and Cross-Referencing. For a Proposal Notice to comply with the requirements of this Article I, Section 13(b), each of the requirements of this Article I, Section 13(b) shall be directly and expressly responded to and a Proposal Notice must clearly indicate and expressly reference which provisions of this Article I, Section 13(b) the information disclosed is intended to be responsive to. Any global cross-references shall be disregarded and information disclosed in the Proposal Notice, or an Exhibit, Annex or Schedule thereto, in response to one provision of this Article I, Section 13(b) shall not be deemed responsive to any other provision hereof unless it is expressly cross-referenced to such other provision and it is clearly apparent how such information is responsive to such other provision.

(viii)    No Incorporation by Reference. For a Proposal Notice to comply with the requirements of this Article I, Section 13(b), it must set forth in writing directly within the body of the Proposal Notice, rather than being incorporated by reference into the Proposal Notice from any pre-existing document or writing, including, but not limited to, any documents publicly filed with the SEC, all the information required to be included therein as set forth in this Article I, Section 13(b), and each of the requirements of this Article I, Section 13(b) shall be directly responded to in a manner that makes it clearly apparent how the information provided is specifically responsive to any requirements of this Article I, Section 13(b). For the avoidance of doubt, a Proposal Notice shall not be deemed to be in compliance with this Article I, Section 13(b) if it attempts to include the required information by incorporating by reference into the Proposal Notice any pre-existing document or writing, including, but not limited to, any documents publicly filed with the SEC.

(ix)    Accuracy of Information. A Proposing Person submitting the Proposal Notice, by its delivery to the Corporation, represents and warrants that all information contained therein, as of the Proposal Notice Deadline, is true, accurate and complete in all respects, contains no false and misleading statements and such Proposing Person acknowledges that it intends for the Corporation and the Board to rely on such information as (i) being true, accurate and complete in all respects and (ii) not containing any false and misleading statements. If the information submitted pursuant to this Article I, Section 13(b) by such Proposing Person shall not be true, correct

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and complete in all respects prior to the Proposal Notice Deadline, such information shall be deemed not to have been provided in accordance with this Article I, Section 13(b).

(x)    Requirement for Separate and Timely Notice. Notwithstanding any notice of the annual meeting, proxy statement, or supplement thereto sent to stockholders on behalf of the Corporation, a stockholder must separately comply with this Article I, Section 13 to conduct business at any stockholders’ meeting. If the stockholder’s proposed business is the same or relates to business brought by the Corporation and included in the Corporation’s annual meeting notice, proxy statement, or supplement thereto, the stockholder is nevertheless still required to comply with this Article I, Section 13 and deliver, prior to the Proposal Notice Deadline, its own separate and timely Proposal Notice to the Secretary of the Corporation that complies in all respects with the requirements of this Article I, Section 13.

(xi)    No Expectation of Confidentiality. A Proposing Person submitting a Proposal Notice pursuant to this Article I, Section 13, by its delivery to the Corporation, acknowledges that it understands that nothing contained therein shall be considered confidential or proprietary information and that neither the Corporation, the Board, nor any agents or representatives thereof shall be restricted, in any manner, from publicly disclosing or using any of the information contained in a Proposal Notice.

(xii)    Rule 14a-8. Nothing in this Article I, Section 13 shall be deemed to affect the rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to, and in compliance with, Rule 14a-8 of the Exchange Act and the SEC’s and SEC Staff’s interpretations, guidance and no-action letter determinations relating thereto.

(xiii)    Other Legal Compliance. In addition to the provisions of this Article I, Section 13(b), each Proposing Person shall also comply with all applicable requirements of the Exchange Act, the SEC and the DGCL with respect to any business that may be brought before an annual meeting, any solicitations of proxies in connection therewith and any filings made with the SEC in connection therewith.

Section 14.    Special Meetings.

(a)    Special meetings of the stockholders of the Corporation may only be called (i) at any time and for any purpose or purposes, by the Board pursuant to a resolution adopted by the affirmative vote of a majority of the Entire Board, or by the Chairman of the Board, if any, and if delegated that authority by a resolution of the Board adopted by the affirmative vote of a majority of the Entire Board, or (ii) by the Secretary of the Corporation, upon the written request of the record stockholders of the Corporation as of the record date fixed in accordance with Article I, Section 14(e) of these By-laws who hold, in the aggregate, at least twenty percent (20%) of the outstanding shares of the Corporation that would be entitled to vote at the meeting (the “Requisite Percentage”), and who comply with the procedures and other requirements contained in this Article I, Section 14 in all applicable respects. The notice of a special meeting shall state the purpose or purposes of the special meeting, and the business to be conducted at the special meeting shall be limited to the purpose or purposes stated in the notice.

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(b)    At any special meeting of the stockholders, only such business shall be conducted or considered as shall have been properly brought before the special meeting. For business to be properly brought before a special meeting, it must be (i) specified in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorized committee thereof), (ii) if not specified in the notice of meeting (or any supplement thereto) provided by or at the direction of the Board (or any duly authorized committee thereof), otherwise properly brought before the special meeting by or at the direction of the Board (or any duly authorized committee of the Board) or the Chairman of the Board, if any, and if delegated that authority by a resolution of the Board adopted by the affirmative vote of a majority of the Entire Board, (iii) properly requested to be brought before a special meeting requested by holders of the Requisite Percentage in accordance with the provisions of this Article I, Section 14 (a “Stockholder Requested Special Meeting”), or (iv) with respect to the election of directors at a special meeting where the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling the special meeting, by a stockholder Present in Person at the special meeting who (A) satisfies the requirements contained in Article II, Section 16(a) of these By-laws, (B) provides a timely and proper notice of nominations in writing to the Secretary of the Corporation in accordance with the provisions of Article II, Section 16 of these By-laws, (C) provides any updates or supplements to such notice of nominations at the times and in the forms required by Article II, Section 16 of these By-laws, and (D) otherwise complies with Article II, Section 16 of these By-laws in all applicable respects. Except as expressly provided by, and subject to compliance with, this Article I, Section 14 and Article II, Section 16 of these By-laws with respect to a stockholder’s ability to propose candidates for election as directors at a special meeting of stockholders where the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling such special meeting in accordance with the provisions of this Article I, Section 14, stockholders shall not be permitted to bring before any special meeting of the stockholders any proposed business or the nomination of persons for election to the Board. Stockholders seeking to propose candidates for election to the Board at a special meeting, whether a Stockholder Requested Special Meeting or other special meeting of stockholders where the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling such special meeting in accordance with the provisions of this Article I, Section 14, must also comply with the requirements set forth in Article II, Section 16 of these By-laws for providing a timely written notice in proper form for the proposal of candidates for election to the Board.

(c)    No stockholder may request that the Secretary of the Corporation call a Stockholder Requested Special Meeting pursuant to Article I, Section 14(a) unless a stockholder of record of the Corporation has first submitted a request in writing (“Record Date Request Notice”) that the Board fix a record date (a “Request Record Date”) for the purpose of determining the stockholders entitled to request that the Secretary of the Corporation call a Stockholder Requested Special Meeting, which Record Date Request Notice shall be in proper form in accordance with Article I, Section 14(d), and delivered to, or mailed and received by, the Secretary of the Corporation at the principal executive offices of the Corporation.

(d)    To be in proper form for purposes of this Article I, Section 14, a Record Date Request Notice shall set forth:

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(i)    As to each Requesting Person (as defined below), (A) the information required by Article I, Section 13(b)(ii)(1) of these By-laws, except that for purposes of this Article I, Section 14 the term “Requesting Person” shall be substituted for the term “Proposing Person” in all places it appears in Article I, Section 13(b)(ii)(1) of these By-laws, the term “Record Date Request Notice” shall be substituted for the term “Proposal Notice” in all places it appears in Article I, Section 13(b)(ii)(1) of these By-laws, and any reference to “business” or “proposal” therein will be deemed to be a reference to the “business” or “nomination” contemplated by this Article I, Section 14(d); (B) a representation that such Requesting Person intends to hold the shares of the Corporation described in response to Article I, Section 13(b)(ii)(1) of these By-laws through the date of the Stockholder Requested Special Meeting; and (C) the disclosures required to be made pursuant to Article I, Section 13(b)(ii)(1) of these By-laws shall be made with respect to the business proposed to be conducted and/or the nominees proposed for election to the Board at the Stockholder Requested Special Meeting);

(ii)    As to the purpose or purposes of the Stockholder Requested Special Meeting, (A) a description in reasonable detail of the specific purpose or purposes of the Stockholder Requested Special Meeting and the business proposed to be conducted at the Stockholder Requested Special Meeting, and the reasons for conducting such business at the Stockholder Requested Special Meeting (including the text of any reasons for the business that will be disclosed in any proxy statement or supplement thereto to be filed with the SEC); (B) the text of the proposal or proposed business (including, if applicable, the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these By-laws, the Certificate of Incorporation, or any policy of the Corporation the language of the proposed amendment); (C) a description in reasonable detail of any interest of any Requesting Person in such proposed business, including any anticipated benefit to any Requesting Person therefrom, including any interest that will be disclosed to the Corporation’s stockholders in any proxy statement to be distributed to the Corporation’s stockholders); (D) a reasonably detailed description of all agreements, arrangements and understandings, written or oral and formal or informal, (x) between or among any of the Requesting Persons or (y) between or among any Requesting Person and any other person (naming each such other person or entity) in connection with the request for the Stockholder Requested Special Meeting or the business or nominees for election to the Board proposed to be acted on at the Stockholder Requested Special Meeting; and (E) any other information relating to such item of business or nominees that would be required to be disclosed in a proxy statement or other filing required to be made with the SEC in connection with a contested solicitation of proxies by any Requesting Person in support of the business or nominees proposed to be brought before the Stockholder Requested Special Meeting pursuant to Section 14(a) of the Exchange Act; and

(iii)    If directors are proposed to be elected at the Stockholder Requested Special Meeting, (i) as to each Requesting Person, the information set forth in Article I, Section 13(b)(ii)(1) of these By-laws (except that for purposes of this Article I, Section 14(d), the term “Requesting Person” shall be substituted for the term “Proposing Person” in all places it appears in Article I, Section 13(b)(ii)(1) of these By-laws, the term “Record Date Request Notice” shall be substituted for the term “Proposal Notice” in all places it appears in Article I, Section 13(b)(ii)(1) of these By-laws, and any reference to “business” or “proposal” therein will be deemed to be a

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reference to the “nomination” contemplated by this Article I, Section 14(d); and (ii) the information for each person whom a Requesting Person proposes to nominate for election as a director at the Stockholder Requested Special Meeting that is required to be disclosed for each “Stockholder Nominee” pursuant to Article II, Section 16(c)(ii) of these By-laws.

(e)    Within ten (10) calendar days after receipt of a Record Date Request Notice in proper form and otherwise in compliance with this Article I, Section 14 from any stockholder of record, the Board may adopt a resolution fixing a Request Record Date for the purpose of determining the stockholders entitled to request that the Secretary of the Corporation call a Stockholder Requested Special Meeting, which date shall not precede the date upon which the resolution fixing the Request Record Date is adopted by the Board. If no resolution fixing a Request Record Date has been adopted by the Board within the ten (10) calendar day period after the date on which such a request to fix a Request Record Date was received, the Request Record Date in respect thereof shall be deemed to be the twentieth (20th) calendar day after the date on which such a request is received. Notwithstanding anything in this Article I, Section 14 to the contrary, no Request Record Date shall be fixed if the Board determines that (i) the Record Date Request Notice does not comply with the requirements set forth in Article I, Section 14(d) or (ii) the written request or requests to call a Stockholder Requested Special Meeting (each, a “Special Meeting Request Notice” and collectively, the “Special Meeting Request Notices”), that would otherwise be submitted following such Request Record Date would not reasonably be expected to comply with the requirements set forth in Article I, Section 14(i) of these By-laws.

(f)    In order for a Stockholder Requested Special Meeting to be called, one or more Special Meeting Request Notices, in the form required by this Article I, Section 14, must be signed by stockholders who, as of the Request Record Date, hold of record or beneficially, in the aggregate, the Requisite Percentage and must be timely delivered to the Secretary of the Corporation at the principal executive offices of the Corporation. To be timely, a Special Meeting Request Notice must be delivered to the principal executive offices of the Corporation not later than the sixtieth (60th) calendar day following the Request Record Date. In determining whether a Stockholder Requested Special Meeting has been properly requested, multiple Special Meeting Request Notices delivered to the Secretary will be considered together only if (i) each Special Meeting Request Notice identifies the same purpose or purposes of the Stockholder Requested Special Meeting and the same matters proposed to be acted on at such meeting (in each case as determined in good faith by the Board), and (ii) such Special Meeting Request Notices have been dated and delivered to the Secretary within sixty (60) calendar days of the earliest dated Special Meeting Request Notice.

(g)    To be in proper form for purposes of this Article I, Section 14, a Special Meeting Request Notice must include and set forth (a) a description of (i) the specific purpose or purposes of the Stockholder Requested Special Meeting, (ii) the matter(s) proposed to be acted on at the Stockholder Requested Special Meeting, and (iii) the reasons for conducting such business at the Stockholder Requested Special Meeting (including the text of any reasons for the business that will be disclosed in any proxy statement or supplement thereto to be filed with the SEC), and (b) the text of the proposed business (including, if applicable, the text of any resolutions proposed for consideration and in the event such business includes a proposal to amend these By-laws, the Certificate of Incorporation or any policy of the Corporation, the text of the proposed amendment),

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and (c) with respect to (1) any stockholder or stockholders submitting a Special Meeting Request Notice; (2) the beneficial owner or beneficial owners, if different, on whose behalf such Special Meeting Request Notice is made; (3) any affiliate or associate of such stockholder or beneficial owner; and (4) each other person who is a member of a “group” (for purposes of these By-laws, as such term is used in Rule 13d-5 under the Exchange Act) with any such stockholder or beneficial owner (or their respective affiliates and associates) or is otherwise Acting in Concert (as defined below) with any such stockholder or beneficial owner (or their respective affiliates and associates) with respect to any actions intended to have the Corporation fix a Request Record Date or call a Stockholder Requested Special Meeting (but excluding any stockholder that has provided such request in response to a solicitation made pursuant to, and in accordance with, Section 14(a) of the Exchange Act by way of a solicitation statement filed with the SEC on Schedule 14A (a “Solicited Stockholder”)), the information required to be provided pursuant to this Article I, Section 14 of a Requesting Person.

(h)    A stockholder may revoke a Special Meeting Request Notice by written revocation delivered to the Secretary at any time prior to the Stockholder Requested Special Meeting. If any such revocation(s) are received by the Secretary after the Secretary’s receipt of Special Meeting Request Notices from the Requisite Percentage of stockholders, and as a result of such revocation(s) there no longer are unrevoked demands from the Requisite Percentage of stockholders to call a Stockholder Requested Special Meeting, then the Board shall have the discretion to determine whether or not to proceed with the Stockholder Requested Special Meeting.

(i)    The Secretary shall not accept, and shall consider ineffective, a Special Meeting Request Notice if (i) such Special Meeting Request Notice does not comply with this Article I, Section 14 or relates to an item of business to be transacted at the Stockholder Requested Special Meeting that is not a proper subject for stockholder action under the Certificate of Incorporation, the DGCL, these By-laws or other applicable law; (ii) the Board calls an annual or special meeting of stockholders (in lieu of calling the Stockholder Requested Special Meeting) in accordance with Article I, Section 14(l); or (iii) such Special Meeting Request Notice was made in a manner that involved a violation of Regulation 14A under the Exchange Act, the rules of the SEC, the DGCL or other applicable law.

(j)    Business brought before any Stockholder Requested Special Meeting by stockholders shall be limited to the matters proposed in the valid Special Meeting Request Notice; provided, however, that nothing herein shall prohibit the Board from bringing other matters before the stockholders at any Stockholder Requested Special Meeting and including such matters in the notice of the meeting it provides to stockholders. If none of the stockholders who submitted and signed the Special Meeting Request Notice (but excluding any Solicited Stockholder) are Present in Person at the Stockholder Requested Special Meeting to present the matters to be presented for consideration that were specified in the Special Meeting Request Notice, the Corporation need not present such matters for a vote at such meeting.

(k)    Any special meeting of stockholders, including any Stockholder Requested Special Meeting, shall be held at such date and time as may be fixed by resolution of the Board adopted by the affirmative vote of a majority of the Entire Board and otherwise in accordance with

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these By-laws, the DGCL and other applicable law; provided that a Stockholder Requested Special Meeting shall be held within ninety (90) calendar days after the Corporation receives one or more valid Special Meeting Request Notices in compliance with this Article I, Section 14 from stockholders having beneficial ownership of at least the Requisite Percentage; provided, however that if the Board neglects or refuses to fix the date of such Stockholder Requested Special Meeting and give the notice required by Article I, Section 2, then the person or persons making the request may do so; provided, further, that the Board shall have the discretion to call an annual or special meeting of stockholders (in lieu of calling the Stockholder Requested Special Meeting) in accordance with Article I, Section 14(l) or cancel any Stockholder Requested Special Meeting that has been called but not yet held for any of the reasons set forth in the foregoing provisions of this Article I, Section 14.

(l)    If a Special Meeting Request Notice is made that complies with this Article I, Section 14, the Board may (in lieu of calling the Stockholder Requested Special Meeting) present an identical or substantially similar item for stockholder approval at any other meeting of stockholders that is held within ninety (90) calendar days after the Corporation receives such Special Meeting Request Notice.

(m)    After receipt of Special Meeting Request Notices in proper form and in accordance with this Article I, Section 14 from a stockholder or stockholders holding the Requisite Percentage, the Board shall duly call, and determine the place, date and time of, a Stockholder Requested Special Meeting for the purpose or purposes and to conduct the business specified in the Special Meeting Request Notices received by the Corporation; provided, however that the Stockholder Requested Special Meeting shall be held within ninety (90) calendar days after the Corporation receives one or more valid Special Meeting Request Notices in compliance with this Article I, Section 14 from stockholders holding at least the Requisite Percentage; provided, further, that the Board shall have the discretion to call an annual or special meeting of stockholders (in lieu of calling the Stockholder Requested Special Meeting) in accordance with Article I, Section 14(l) or cancel any Stockholder Requested Special Meeting that has been called but not yet held for any of the reasons set forth in the foregoing provisions of this Article I, Section 14. The Board shall provide written notice of such Stockholder Requested Special Meeting in accordance with Article I, Section 2 of these By-laws. The record date for notice and voting for such a Stockholder Requested Special Meeting shall be fixed in accordance with Article I, Section 4 of these By-laws.

(n)    In connection with a Stockholder Requested Special Meeting called in accordance with this Article I, Section 14, the stockholder or stockholders (except for any Solicited Stockholder) who submitted a Record Date Request or a Special Meeting Request Notice shall further update and supplement the information previously provided to the Corporation in connection with such requests, if necessary, so that the information provided or required to be provided in such requests pursuant to this Article I, Section 14 shall be true, correct and complete as of (i) the record date for the determination of persons entitled to receive notice of the special meeting and (ii) the date that is five (5) business days prior to the special meeting and, in the event of any adjournment or postponement thereof, five (5) business days prior to such adjourned or postponed special meeting. In the case of an update and supplement pursuant to clause (i) of this Section, such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive

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offices of the Corporation not later than eight (8) business days after the record date for the determination of persons entitled to receive notice of the special meeting. In the case of an update and supplement pursuant to clause (ii) of this Section, such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than two (2) business days prior to the date for the special meeting, and, in the event of any adjournment or postponement thereof, two (2) business days prior to such adjourned or postponed special meeting.

(o)    Upon written request by the Secretary of the Corporation, the Board or any duly authorized committee thereof, any stockholder or stockholders (except for any Solicited Stockholder) who submitted a Record Date Request or a Special Meeting Request Notice shall provide, within five (5) business days of delivery of such request (or such other period as may be specified in such request), written verification, in a form and manner, including, if requested, an executed and notarized affidavit, satisfactory in the reasonable discretion of the Board, any duly authorized committee thereof or any duly authorized officer of the Corporation, to demonstrate the accuracy of any information submitted by the stockholder or stockholders in accordance with this Article I, Section 14. If a stockholder fails to provide such written verification within such period and in the form requested, the information as to which written verification was requested may be deemed not to have been provided in accordance with this Article I, Section 14.

(p)    A stockholder (other than any Solicited Stockholder) submitting a Record Date Request Notice or a Special Meeting Request Notice, as the case may be, by its delivery to the Corporation, represents and warrants that, when submitted, all information contained in such notice is true, accurate and complete in all respects, contains no false and misleading statements and such stockholder acknowledges that it intends for the Corporation and the Board to rely on such information as (i) being true, accurate and complete in all respects, and (ii) not containing any false and misleading statements. If the information submitted pursuant to this Article I, Section 14 in either a Record Date Request Notice or a Special Meeting Request Notice, as the case may be, shall not be true, correct and complete in all respects when submitted, such information shall be deemed not to have been provided in accordance with this Article I, Section 14.

(q)    For a Record Date Request Notice or a Special Meeting Request Notice, as the case may be, to comply with the applicable requirements of this Article I, Section 14, each of the requirements of this Article I, Section 14, as applicable, shall be directly and expressly responded to and such notice must clearly indicate and expressly reference which provisions of this Article I, Section 14 the information disclosed is intended to be responsive to. Any global cross-references shall be disregarded and information disclosed in one section of such notice, or an Exhibit, Annex or Schedule thereto, in response to one provision of this Article I, Section 14 shall not be deemed responsive to any other provision of this Section 14 unless it is expressly cross-referenced to such other provision and it is clearly apparent how such information is responsive to such other provision.

(r)    For a Record Date Request Notice or a Special Meeting Request Notice, as the case may be, to comply with the applicable requirements of this Article I, Section 14, it must set forth in writing directly within the body of such notice, rather than being incorporated by reference into such notice from any pre-existing document or writing, including, but not limited to, any

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documents publicly filed with the SEC, all the information required to be included therein as set forth in this Article I, Section 14, and each of the requirements of this Article I, Section 14 shall be directly responded to in a manner that makes it clearly apparent how the information provided is specifically responsive to any requirements of this Article I, Section 14. For the avoidance of doubt, neither a Record Date Request Notice nor a Special Meeting Request Notice, as the case may be, shall be deemed to be in compliance with this Article I, Section 14 if it attempts to include the required information by incorporating by reference into such notice any pre-existing document or writing, including, but not limited to, any documents publicly filed with the SEC.

(s)    A stockholder submitting a Record Date Request Notice or a Special Meeting Request Notice, as the case may be, by its delivery to the Corporation, acknowledges that it understands that nothing contained therein shall be considered confidential or proprietary information and that neither the Corporation, the Board, nor any agents or representatives thereof shall be restricted, in any manner, from publicly disclosing or using any of the information contained in such notice.

(t)    For purposes of this Article I, Section 14, the term “Requesting Person” shall mean (i) the stockholder submitting the Record Date Request Notice; (ii) the beneficial owner or beneficial owners of the Corporation’s capital stock, if different, on whose behalf such notice is being sent is made; (iii) any affiliate or associate of such stockholder or beneficial owner; (iv) the spouse or other family member of such stockholder or beneficial owner to the extent that such spouse or other family member is involved in engaging with the Corporation on behalf of such stockholder or beneficial owner; (v) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A) with such stockholder in any solicitation contemplated by the Record Date Request Notice; (vi) any person who is a member of a “group” (for purposes of these By-laws, as such term is used in Rule 13d-5 under the Exchange Act) with any such stockholder or beneficial owner (or their respective affiliates and associates); and (vii) any other person with whom such stockholder or beneficial owner (or any of their respective affiliates or associates) is Acting in Concert. Notwithstanding anything to the contrary contained in Article I, Section 14(d) or Article I, Section 14(g), the disclosures required by Article I, Section 14(d) or Article I, Section 14(g) regarding a Requesting Person shall not include any such disclosures with respect to the ordinary course of business activities of any broker, dealer, commercial bank, or trust company solely as a result of being the stockholder directed to prepare and submit a Record Date Request Notice or Special Meeting Request Notice, as the case may be, as required by these By-laws on behalf of a beneficial owner of the shares held of record by such broker, dealer, commercial bank, or trust company and who is not otherwise affiliated or associated with such beneficial owner.

(u)    Notwithstanding anything in these By-laws to the contrary, the Secretary of the Corporation shall not be required to fix a Request Record Date or to call a Stockholder Requested Special Meeting pursuant to this Article I, Section 14 except in accordance with this Article I, Section 14. If the Board shall determine that any Record Date Request Notice or Special Meeting Request Notice was not properly submitted in accordance with this Article I, Section 14, or shall determine that the stockholder or stockholders submitting a Record Date Request Notice or a Special Meeting Request Notice have not otherwise complied with this Article I, Section 14 in all applicable respects,

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then the Board shall not be required to fix the Request Record Date or to call and hold the Stockholder Requested Special Meeting.

(v)    In addition to the requirements of this Article I, Section 14, each person submitting a Record Date Request Notice or a Special Meeting Request Notice, as the case may be, shall comply with all applicable requirements of the Exchange Act, the SEC, the DGCL and other applicable law with respect to any Record Date Request Notice, Special Meeting Request Notice, or Stockholder Requested Special Meeting, any solicitations of special meeting demands or proxies from the Corporation’s stockholders in connection therewith, and any filings required to be made with the SEC in connection with any of the foregoing.

Article II. Directors

Section 1.    General Powers. The property, business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by applicable law or by the Certificate of Incorporation directed or required to be exercised or done by the stockholders.

Section 2.    Qualifications. Each director shall be at least 21 years of age. Directors need not be stockholders of the Corporation or citizens or residents of the State of Delaware or the United States of America.

Section 3.    Organization. The Board may from time to time, but shall not be required to, elect a Chairman of the Board from among the members of the Board. The Chairman of the Board may be, but is not required to be, an officer or employee of the Corporation. Meetings of the Board shall be presided over by the Chairman of the Board, or such other person as the Board may determine. The Secretary shall act as secretary of the meeting, and in his or her absence such other person as the person presiding over the meeting may appoint.

Section 4.    Number of Directors. The number of directors which shall constitute the whole Board shall be fixed from time to time by resolution of the Board approved by the affirmative vote of a majority of the Entire Board. The number of directors may be decreased at any time and from time to time by resolution of the Board approved by the affirmative vote of a majority of the directors then in office, but only to eliminate vacancies existing by reason of the death, resignation, removal or expiration of the term of one or more directors. No decrease in the number of directors constituting the Board shall shorten the term of any incumbent director.

Section 5.    Term. The entire Board shall stand for election or re-election by the stockholders at each annual meeting, and each director shall be elected to serve until his or her successor shall be elected and duly qualified or until his or her earlier death, resignation or removal in the manner as herein provided.





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Section 6.    Majority Voting in the Election of Directors.

(a)    Except as provided in Section 9 of Article II of these By-laws, each nominee for director shall be elected to the Board by the vote of the majority of the votes cast by stockholders with respect to that director’s election at any meeting of stockholders for the election of directors at which a quorum is present (i.e., if the votes cast for such nominee’s election exceed the votes cast against such nominee’s election at any meeting for the election of directors at which a quorum is present). For purposes of this Article II, Section 6(a), abstentions and broker non-votes shall not be deemed votes cast either “for” or “against” that nominee’s election. Notwithstanding the foregoing, nominees for director shall be elected by a plurality of the votes cast (and not by majority vote) at any meeting of stockholders where the election of directors is a Contested Election (as hereinafter defined). For purposes of these By-laws, an election of directors shall be considered a “Contested Election” if the number of nominees standing for election at any meeting of stockholders exceeds the number of directors to be elected, with the determination that an election is “contested” to be made by the Secretary of the Corporation, based on whether one or more Nominating Notices (as hereinafter defined), purporting to be in compliance with Article II, Section 16, of these By-laws, were received by the Secretary of the Corporation (provided that the determination that an election is a “Contested Election” shall not prejudice the ability of the Corporation to challenge whether a Nominating Notice has been submitted in accordance with these By-laws), and (ii) such Nominating Notice or Nominating Notices have not been withdrawn on or prior to the tenth (10th) calendar day preceding the date the Corporation files with the SEC its initial definitive proxy statement relating to such meeting of stockholders such that the number of candidates for election as director no longer exceeds the number of directors to be elected at such meeting (regardless of whether or not such proxy statement is thereafter revised or supplemented). If directors are to be elected by a plurality of the votes cast, stockholders shall not be permitted to vote against a nominee.

(b)    Each person who is nominated to stand for election as director, whether such nomination is proposed by the Corporation or a stockholder, shall, as a condition to such nomination, tender an irrevocable and executed letter of resignation in advance of the meeting for the election of directors. At a meeting that is not a Contested Election, at which a quorum is present, if any incumbent director nominated for re-election does not receive the vote required by Article II, Section 6(a) of these By-laws for such incumbent director to be re-elected, such director will promptly tender his or her irrevocable resignation to the Board to the extent that such resignation was not earlier provided to the Board. The Nominating and Governance Committee (“Nominating and Governance Committee”) will make a recommendation to the Board on whether to accept or reject such tendered resignation, or whether other action should be taken. The Board will act on the tendered resignation, taking into account the Nominating and Governance Committee’s recommendation, and publicly disclose (by a press release, a filing with the SEC or other broadly disseminated means of communication) its decision regarding the tendered resignation and the rationale behind the decision within ninety (90) calendar days from the date of the certification of the election results. The Nominating and Governance Committee in making its recommendation, and the Board in making its decision, may each consider any factors or other information that it considers appropriate and relevant. The director who tenders his or her resignation will not participate in the recommendation of the Nominating and Governance Committee or the decision of the Board with respect to his or her resignation. If a director’s resignation is not accepted by the

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Board, such director will continue to serve until the next annual meeting and until his or her successor is duly elected, or his or her earlier resignation or removal.

(c)    If a director’s resignation is accepted by the Board in accordance with this Article I, Section 6, or if a nominee for director is not elected and the nominee is not an incumbent director, then the Board, in its sole discretion, may fill any resulting vacancy pursuant to the provisions of Section 9 of Article II of these By-laws or may decrease the size of the Board pursuant to the provisions of Section 4 of Article II of these By-laws.

Section 7.    Resignations. Any director may resign at any time upon notice given in writing or by electronic transmission to the Chairman of the Board, the Chief Executive Officer, the Secretary or any committee to which the Board has delegated the authority to accept resignations; provided, however, that if such notice is given by electronic transmission, such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the director. A resignation is effective when the resignation is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. Acceptance of such resignation shall not be necessary to make it effective. A resignation which is conditioned upon the director failing to receive a specified vote for reelection as a director may provide that it is irrevocable. Unless otherwise provided in the Certificate of Incorporation or these By-laws, when one or more directors resign from the Board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective.

Section 8.    Removal of Directors. At a meeting of the stockholders called, in accordance with these By-laws, expressly for the purpose of removing members of the Board, any director or the entire Board may be removed, with or without cause, by a vote of the holders of a majority of the shares of each class or series of voting stock, present in person or by proxy, then entitled to vote at an election of directors.

Section 9.    Vacancies. Any vacancy occurring in the Board, including any vacancy created by reason of an increase in the number of directors, may be filled by resolution of the Board approved by the affirmative vote of a majority of the remaining directors in office despite having less than a quorum of the Board or by the sole remaining director. A director elected to fill a vacancy shall hold office for the unexpired term of the director he or she is replacing and until his or her successor shall be duly elected and qualified or until his or her earlier death, resignation or removal.

Section 10.    Quorum and Manner of Acting. Except as provided by applicable law, the Certificate of Incorporation or these By-laws, a majority of the total number of directors then in office shall be present in person at any meeting of the Board in order to constitute a quorum for the transaction of business at such meeting. The affirmative vote of a majority of those directors present at any such meeting at which a quorum is present shall be necessary for the passage of any resolution or act of the Board, unless a different vote is required by applicable law, the Certificate of Incorporation or these By-laws. In the absence of a quorum for any such meeting, a majority of the

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directors present thereat may adjourn such meeting from time to time until a quorum shall be present thereat. Notice of any adjourned meeting need not be given.

Section 11.    Place of Meeting. The Board may hold its meetings at such place or places within or without the State of Delaware as the Board may from time to time determine or as shall be designated in the respective notices or waivers of notice thereof.

Section 12.    Regular Meetings. The Board from time to time may by resolution of the Board provide for the holding of regular meetings and fix the place (which may be within or without the State of Delaware), date and time of such meetings. Notice of regular meetings need not be given; provided, however, that if the Board shall fix or change the time or place of any regular meeting, notice of such action shall be mailed promptly, or given by telephone (including by a voice or text messaging system), facsimile or electronic mail to each director who shall not have been present at the meeting at which such action was taken, directed to each director at that director’s address, telephone number, facsimile number or electronic mail address, as the case may be, as shown on the Corporation’s records, or shall be delivered to him or her personally.

Section 13.    Special Meetings. Special meetings of the Board shall be held whenever called by the Chairman of the Board or the Chief Executive Officer or upon the written request of at least two (2) of the directors, at such place, date and time as may be specified in the respective notices or waivers of notice of such meetings. Special meetings of the Board may be called on at least forty-eight (48) hours’ notice to each director if notice is given to each director personally or by telephone (including by a voice or text messaging system), facsimile or electronic mail, or on three (3) calendar days’ notice from the official date of deposit in the mail if notice is sent by internationally recognized courier to each director, directed to each director at that director’s address, telephone number, facsimile number or electronic mail address, as the case may be, as shown on the Corporation’s records. Such notice need not state the purpose of, nor the business to be transacted at, that meeting, except as may otherwise be required by these By-laws or applicable law. Notice need not be given to a director present at a meeting. A meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in writing either before or after that meeting.

Section 14.    Meetings by Electronic Communications Equipment. Any one or more members of the Board, or any committee designated by the Board, may participate in a meeting of the Board, or such committee, by means of 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 by such means shall constitute presence in person at such meeting.

Section 15.    Action Without a Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By-laws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or any committee thereof, as the case may be, consent thereto in writing, or by electronic transmission, and the writing or writings or electronic transmissions are filed with the minutes of proceedings of the Board or committee thereof, as the case may be. Such filing shall be in paper form if the minutes

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are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

Section 16.    Nomination of Directors.

(a)    Method of Nomination. Nominations of candidates for election as directors may be made at any annual meeting of stockholders or at any special meeting of stockholders, but in the case of any special meeting of stockholders, only if the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling such special meeting in accordance with Article I, Section 14 of these By-laws, (i) by, or at the direction of the Board (or any duly authorized committee thereof) (including, without limitation, by making reference to the nominees in the proxy statement delivered to stockholders on behalf of, or at the direction of, the Board), or (ii) by any stockholder of the Corporation Present in Person at the meeting who (A) is a beneficial owner (as of the time the Nominating Notice (as hereinafter defined) is given by the stockholder as set forth in this Article II, Section 16, as of the record date for determining stockholders entitled to notice of, and to vote at, the meeting in question and at the time of the meeting) of any shares of the Corporation’s capital stock outstanding, (B) is entitled to vote at such meeting, and (C) complies with all applicable requirements of this Article II, Section 16. Only persons who are proposed as director nominees in accordance with the procedures set forth in this Article II, Section 16 shall be eligible for election as directors of the Corporation at any meeting of stockholders.

(b)    Stockholder Nominations. For a person to be properly brought before any stockholders’ meeting by a stockholder as a proposed nominee for election as a director, the stockholder, in addition to complying with the requirements set forth in Article II, Section 16(a), must (i) have given timely notice thereof in writing to the Secretary in proper form (the “Nominating Notice”), (ii) provide any updates or supplements to such Nominating Notice at the times and in the forms required by this Article II, Section 16, and (iii) comply with the notice and other procedures set forth in this Article II, Section 16 in all applicable respects. To be timely, the Nominating Notice must be made in writing and delivered to, or mailed and received by, the Secretary of the Corporation at the principal office of the Corporation (i) not earlier than the close of business on the one hundred and fiftieth (150th) calendar day and not later than the close of business on the one hundred and twentieth (120th) calendar day prior to the Anniversary Date or (ii) in the case of a special meeting of stockholders called in accordance with Article I, Section 14 of these By-laws for the purpose of electing directors, or in the event that the annual meeting of stockholders is called for a date that is more than thirty (30) calendar days before or more than sixty (60) calendar days after the Anniversary Date, or if the Corporation did not hold an annual meeting (or special meeting in lieu of an annual meeting) in the preceding fiscal year, notice by the stockholder to be timely must be so delivered to, or mailed and received by, the Secretary of the Corporation not later than the later of (i) the close of business on the ninetieth (90th) calendar day prior to the scheduled date of such stockholders’ meeting or (ii) the close of business on the tenth (10th) calendar day following the day on which public disclosure of the date of such stockholders’ meeting was first made by the Corporation (or if that day is not a business day for the Corporation, on the next succeeding business day). In no event shall any adjournment or postponement of an annual or special meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above.

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Notwithstanding anything in the second sentence of this Article II, Section 16(b) to the contrary, in the event that the number of directors to be elected to the Board of the Corporation is increased and there is no public disclosure naming all of the nominees for director or specifying the size of the increased Board made by the Corporation at least one hundred and thirty (130) calendar days prior to the Anniversary Date, a stockholder’s notice required by this Article II, Section 16 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, and only with respect to a stockholder who had, prior to such increase in the size of the Board, previously submitted in proper form a Nominating Notice prior to the Nominating Notice Deadline, if it shall be delivered to, or mailed and received by, the Secretary of the Corporation at the principal office of the Corporation not later than the close of business on the tenth (10th) calendar day following the day on which such public disclosure is first made by the Corporation.

(c)    Required Form of Nominating Notice. To be in proper form, the Nominating Notice to the Secretary of the Corporation shall set forth in writing:

(i)    Information Regarding the Nominating Person. As to each Nominating Person (as defined herein), the information set forth in Article I, Section 13(b)(ii)(1) of these By-laws that would be required to be disclosed if such person was a Proposing Person (except that for purposes of this Article II, Section 16(c), any reference to “business” or “proposal” therein will be deemed to be a reference to the “nomination” contemplated by this Article II, Section 16(c) and any references to a “Proposal Notice” will be deemed a reference to a “Nominating Notice”).

(ii)    Information Regarding the Nominee: As to each person whom the Nominating Person proposes to nominate for election as a director (each, a “Stockholder Nominee”):

(1)    all information with respect to such Stockholder Nominee that would be required to be set forth in a Nominating Notice pursuant to Article II, Section 16(c)(i) if such Stockholder Nominee were a Nominating Person;

(2)    a description in reasonable detail of any and all litigation, whether or not judicially resolved, settled or dismissed, relating to the Stockholder Nominee’s past or current service on the board of directors (or similar governing body) of any Corporation, limited liability company, partnership, trust or any other entity where a legal complaint filed in any state or federal court located within the United States alleges that the Stockholder Nominee committed any act constituting (a) a breach of fiduciary duties, (b) misconduct, (c) fraud, (d) breaches of confidentiality obligations, and/or (e) a breach of the entity’s code of conduct applicable to directors;

(3)    to the extent that such Stockholder Nominee has been convicted of any past criminal offenses involving dishonesty or a breach of trust or duty, a description in reasonable detail of such offense and all legal proceedings relating thereto;

(4)    to the extent that such Stockholder Nominee has ever been suspended or barred by any governmental authority or self-regulatory organization from engaging in any profession or participating in any industry, or has otherwise been subject to a disciplinary

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action by a governmental authority or self-regulatory organization that provides oversight over the Stockholder Nominee’s current or past profession or an industry that the Stockholder Nominee has participated in, a description in reasonable detail of such action and the reasons therefor;

(5)    to the extent that such Stockholder Nominee has been determined by any governmental authority or self-regulatory organization to have violated any federal or state securities or commodities laws, including but not limited to, the Securities Act of 1933, as amended, the Exchange Act or the Commodity Exchange Act, a description in reasonable detail of such violation and all legal proceedings relating thereto;

(6)    all other information relating to such Stockholder Nominee that would be required to be disclosed in a proxy statement or other filing made with the SEC pursuant to Section 14(a) and Regulation 14A under the Exchange Act in connection with a contested solicitation of proxies in support of the election of the Stockholder Nominee(s) in which any Nominating Person is a participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A, or any successor instructions);

(7)    such Stockholder Nominee’s executed written consent to be named in the proxy statement of the Nominating Person as a nominee and to serve as a director of the Corporation if elected;

(8)    a written questionnaire completed and signed by such Stockholder Nominee with respect to the background, qualifications and independence of such Stockholder Nominee (in the form provided by the Secretary of the Corporation upon written request);

(9)    such Stockholder Nominee’s executed written undertaking agreeing to comply, if elected as a director of the Corporation, with all corporate governance, conflicts of interest, code of conduct and ethics, confidentiality and stock ownership and trading policies and guidelines of the Corporation, as the same shall be amended from time to time by the Board;

(10)    to the extent that such Stockholder Nominee has entered into (a) any agreement, arrangement or understanding (whether written or oral) with, or has given any commitment or assurance to, any person or entity as to the positions that such Stockholder Nominee, if elected as a director of the Corporation, would take in support of or in opposition to any issue or question that may be presented to him or her for consideration in his or her capacity as a director of the Corporation, (b) any agreement, arrangement or understanding (whether written or oral) with, or has given any commitment or assurance to, to any person or entity as to how such Stockholder Nominee, if elected as a director of the Corporation, would act or vote with respect to any issue or question presented to him or her for consideration in his or her capacity as a director of the Corporation, (c) any agreement, arrangement or understanding (whether written or oral) with any person or entity that could be reasonably interpreted as having been both (1) entered into in contemplation of the Stockholder Nominee being elected as a director of the Corporation, and (2) intended to limit or interfere with the Stockholder Nominee’s ability to comply, if elected as a

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director of the Corporation, with his or her fiduciary duties, as a director of the Corporation, to the Corporation or its stockholders, or (d) any agreement, arrangement or understanding (whether written or oral) with any person or entity that could be reasonably interpreted as having been or being intended to require such Stockholder Nominee to consider the interests of a person or entity (other than the Corporation and its stockholders) in complying with his or her fiduciary duties, as a director of the Corporation, to the Corporation or its stockholders, a description in reasonable detail of each such agreement, arrangement or understanding (whether written or oral) or commitment or assurance;

(11)    the amount of any equity securities beneficially owned by such Stockholder Nominee in any company that is a direct competitor of the Corporation or its operating subsidiaries if such beneficial ownership by such nominee, when aggregated with that of all other Stockholder Nominees and the Nominating Persons, is five percent (5%) or more of the class of equity securities of such company;

(12)    a description in reasonable detail of any and all agreements, arrangements and/or understandings, written or oral, between such Stockholder Nominee and any person or entity (naming each such person or entity) with respect to any direct or indirect compensation, reimbursement, indemnification or other benefit (whether monetary or non-monetary) in connection with or related to such Stockholder Nominee’s service on the Board if elected as a member of the Board;

(13)    a description in reasonable detail of any and all other agreements, arrangements and/or understandings, written or oral, between such Stockholder Nominee and any person or entity (naming such person or entity) in connection with such Stockholder Nominee’s service or action as a proposed nominee and, if elected, as a member of the Board;

(14)    such Stockholder Nominee’s irrevocable letter of resignation as a director of the Corporation, effective upon such person’s failure to receive the required vote for re-election at the next meeting of stockholders at which such person would face re-election and upon acceptance of such resignation by the Board, in accordance with Article II, Section 6(b) of these By-laws;

(15)    all information that would be required to be disclosed pursuant to Items 403 and 404 under Regulation S-K if the stockholder providing the Nominating Notice or any other Nominating Person were the “registrant” for purposes of such Items and the Stockholder Nominee were a director or executive officer of such registrant; and

(16)    all other information reasonably requested by the Corporation in order to permit the Board to determine that each Stockholder Nominee is independent under the listing standards of the principal U.S. exchange upon which the common stock of the Corporation is listed, any applicable rules of the SEC and any publicly disclosed standards used by the Board in determining and disclosing the independence of the Corporation’s directors.


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(d)    Updating of Nominating Notice.

(i)    A Nominating Person providing a Nominating Notice shall update and supplement such Nominating Notice, as necessary, from time to time, so that the information provided or required to be provided in such Nominating Notice pursuant to this Article II, Section 16 shall be true, correct and complete in all respects not only prior to the Nominating Notice Deadline but also at all times thereafter and prior to the stockholders’ meeting, and such update and supplement shall be received by the Secretary of the Corporation not later than the earlier of (A) five (5) business days following the occurrence of any event, development or occurrence which would cause the information provided to be not true, correct and complete in all respects, and (B) ten (10) business days prior to the meeting at which such proposed nominations described in such Nominating Notice are to be considered; provided, however, that should any such event, development or occurrence take place within ten (10) business days prior to such meeting, such update and supplement shall be received by the Secretary of the Corporation not later than one (1) business day following any such event, development or occurrence.

(ii)    If the information submitted pursuant to this Article II, Section 16 by any Nominating Person in a Nominating Notice shall not be true, correct and complete in all respects prior to the Nominating Notice Deadline, such information may be deemed not to have been provided in accordance with this Article II, Section 16. For the avoidance of doubt, the updates required pursuant to this Article II, Section 16 do not cause a Nominating Notice that was not in compliance with this Article II, Section 16 when delivered to the Corporation prior to the Nominating Notice Deadline to thereafter be in proper form in accordance with this Article II, Section 16.

(iii)    Upon written request by the Secretary of the Corporation, the Board or any duly authorized committee thereof, each Nominating Person proposing Stockholder Nominees for consideration at a stockholders’ meeting shall provide, within five (5) business days of delivery of such request (or such other period as may be specified in such request), written verification, in a form and manner, including, if requested, an executed and notarized affidavit, satisfactory in the reasonable discretion of the Board, any duly authorized committee thereof or any duly authorized officer of the Corporation, to demonstrate the accuracy of any information submitted by such Nominating Person pursuant to this Article II, Section 16. If a Nominating Person fails to provide such written verification within such period and in the form requested, the information as to which written verification was requested may be deemed not to have been provided in accordance with this Article II, Section 16.

(e)    Exclusive Means. Article II, Section 16 of these By-laws shall be the exclusive means of any stockholder or beneficial owner of the Corporation’s capital stock to propose a nominee for election to the Board before any stockholders’ meeting. No candidate shall be eligible for nomination as a director of the Corporation unless such candidate for nomination and the Nominating Person seeking to place such candidate’s name in nomination for election at a stockholders’ meeting have complied with this Article II, Section 16 in all respects.

(f)    Effect of Non-compliance. If the Presiding Officer shall determine, based on the facts and circumstances and in consultation with counsel (who may be the Corporation’s internal

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counsel), that a Stockholder Nominee was not properly nominated in accordance with this Article II, Section 16, then the Presiding Officer shall so declare such determination to the stockholders’ meeting, the defective nomination shall be disregarded and any ballots cast for the candidate in question (but in the case of any form of ballot listing other qualified nominees, only the ballots cast for the nominee in question) shall be void and of no force or effect. In addition, nominations made by a Nominating Person may not be brought before a stockholders’ meeting if such Nominating Person takes action contrary to the representations made in the Nominating Notice applicable to such nomination or if the Nominating Notice applicable to such nomination contains an untrue statement of a fact or omits to state a fact necessary to make the statements therein not misleading. Notwithstanding anything in this Article II, Section 16 to the contrary, unless otherwise required by applicable law, if the Nominating Person is not Present in Person at the stockholders’ meeting to present the proposed nominations described in the Nominating Notice, such proposed nominations shall be disregarded, notwithstanding that proxies in respect of the vote on such proposed nominations may have been received by the Corporation.

(g)    No Incorporation by Reference. For a Nominating Notice to comply with the requirements of this Article II, Section 16, it must set forth in writing directly within the body of the Nominating Notice, rather than being incorporated by reference into the Nominating Notice from any pre-existing document or writing, including, but not limited to, any documents publicly filed with the SEC, all the information required to be included therein as set forth in this Article II, Section 16, and each of the requirements of this Article II, Section 16 shall be directly responded to in a manner that makes it clearly and expressly apparent how the information provided is specifically responsive to any requirements of this Article II, Section 16. For the avoidance of doubt, a Nominating Notice shall not be deemed to be in compliance with this Article II, Section 16 if it attempts to include the required information by incorporating by reference into the Nominating Notice any pre-existing document or writing, including, but not limited to, any documents publicly filed with the SEC.

(h)    Referencing and Cross-Referencing. For a Nominating Notice to comply with the requirements of this Article II, Section 16, each of the requirements of this Article II, Section 16 shall be directly and expressly responded to and a Nominating Notice must clearly indicate and expressly reference which provisions of this Article II, Section 16 the information disclosed is intended to be responsive to. Any global cross-references shall be disregarded and information disclosed in one section of the Nominating Notice, or an Exhibit, Annex or Schedule thereto, in response to one provision of this Article II, Section 16 shall not be deemed responsive to any other provision of this Article II, Section 16 unless it is expressly cross-referenced to such other provision.

(i)    Accuracy of Information. A Nominating Person submitting the Nominating Notice, by its delivery to the Corporation, represents and warrants that, as of the Nominating Notice Deadline, all information contained therein is true, accurate and complete in all respects, contains no false and misleading statements and such stockholder acknowledges that it intends for the Corporation and the Board to rely on such information as (i) being true, accurate and complete in all respects and (ii) not containing any false and misleading statements. If the information submitted pursuant to this Article II, Section 16 by such Nominating Person shall not be true, correct and

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complete in all respects prior to the Nominating Notice Deadline, such information shall be deemed not to have been provided in accordance with this Article II, Section 16.

(j)    Requirement for Separate and Timely Notice. Notwithstanding any notice of stockholders’ meeting, proxy statement, or supplement thereto sent to stockholders on behalf of the Corporation, a stockholder must separately comply with this Article II, Section 16 to propose director nominations at any stockholders’ meeting and provide its own separate and timely Nominating Notice to the Secretary of the Corporation that complies in all respects with the requirements of this Article II, Section 16.

(k)    No Expectation of Confidentiality. A Nominating Person submitting a Nominating Notice pursuant to this Article II, Section 16, by its delivery to the Corporation, acknowledges that it understands that nothing contained therein shall be considered confidential or proprietary information and that neither the Corporation, the Board, nor any agents or representatives thereof shall be restricted, in any manner, from publicly disclosing or using any of the information contained in a Nominating Notice.

(l)    Other Legal Compliance. In addition to the provisions of this Article II, Section 16, a stockholder shall also comply with all applicable requirements of the Exchange Act, the SEC and the DGCL with respect to any nominations of directors for election at any stockholders’ meeting, any solicitations of proxies in connection therewith, and any filings made with the SEC in connection therewith.

(m)    Certain Definitions. For purposes of these By-laws, the following definitions shall be applicable:

(i)    Nominating Notice Deadline” shall mean the last date for a stockholder to deliver a Nominating Notice in accordance with the provisions of Article II, Section 16 of these By-laws.

(ii)    Nominating Person” means (i) the stockholder providing the Nominating Notice; (ii) the beneficial owner of the Corporation’s capital stock, if different, on whose behalf the Nominating Notice is given; (iii) any affiliate or associate of such stockholder or beneficial owner; (iv) the spouse or other family member of such stockholder or beneficial owner to the extent that such spouse or other family member is involved in engaging with the Corporation on behalf of such stockholder or beneficial owner; (v) any participant (as defined in paragraphs (a)(ii)-(vi) of Instruction 3 to Item 4 of Schedule 14A, or any successor instructions) with such stockholder or beneficial owner in such solicitation of proxies in respect of the nominations described in the Nominating Notice; (vi) any person who is a member of a “group” (for purposes of these By-laws, as such term is used in Rule 13d-5 under the Exchange Act) with any such stockholder or beneficial owner (or their respective affiliates and associates); and (vii) any other person with whom such stockholder or beneficial owner (or any of their respective affiliates or associates) is Acting in Concert.


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Section 17.    Compensation. Each director, in consideration of his or her serving as such, shall be entitled to receive from the Corporation such remuneration, in the form of cash or equity of the Corporation or other compensation, or a combination thereof, as may be fixed from time to time by resolution of the Board approved by an affirmative vote of the Entire Board, including, if so approved, reasonable annual fees and reasonable fees for attending meetings of the Board and meetings of any committee of the Board. The Board may likewise provide that the Corporation shall reimburse each director or member of a committee for any expenses incurred by him or her on account of his or her attendance at any such meeting. Unless otherwise determined by the Board, a director who is an employee of the Corporation shall not receive any compensation for service on the Board, but shall be reimbursed for expenses of attendance at meetings in accordance with the Corporation’s applicable policies and procedures for such reimbursement. Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.

Section 18.    Committees.

(a)    The Board, by resolution of the Board approved by the affirmative vote of a majority of the Entire Board, may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect directors to serve as members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee, but no such committee shall have less than two members. Any committee so designated may exercise the power and authority of the Board to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the DGCL if the resolution which designates the committee or a supplemental resolution of the Board shall so provide. In the absence or disqualification of any member of any committee and any alternate member in his place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or she or they constitute a quorum, may by unanimous vote appoint another member of the Board to act at the meeting in the place of the absent or disqualified member.

(b)    Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by applicable law. Adequate provision shall be made for notice to members of all meetings; one-third of the authorized members shall constitute a quorum unless the committee shall consist of two members, in which event one member shall constitute a quorum; and all matters shall be determined by a majority vote of the members present. Action may be taken by any committee without a meeting if all members thereof consent to the action in writing or by electronic transmission, and the writings or electronic transmissions are filed with the minutes of proceedings of the committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

(c)    Except as otherwise provided in the Certificate of Incorporation, these By-laws or a resolution of the Board designating the committee, a committee may create one or more

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subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.

(d)    In the event any person shall cease to be a director of the Corporation, such person shall simultaneously therewith cease to be a member of any committee appointed by the Board.

Article III. Officers

Section 1.    Officers Designated. The officers of the Corporation shall include, if and when designated by the Board, the Chairman of the Board (provided that notwithstanding anything to the contrary contained in these By-laws, the Chairman of the Board shall not be deemed an officer of the Corporation unless so designated by the Board), the Chief Executive Officer, one or more Vice Presidents, the Secretary, the Chief Financial Officer and the Treasurer. The Board may also appoint one or more Assistant Secretaries and Assistant Treasurers and such other officers and agents with such powers and duties as it shall deem necessary. The Board may assign such additional titles to one or more of the officers as it shall deem appropriate. Any one person may hold any number of offices of the Corporation at any one time unless specifically prohibited therefrom by applicable law. The salaries and other compensation of the officers of the Corporation shall be fixed by or in the manner designated by the Board.

Section 2.    Tenure And Duties Of Officers.

(a)    General. All officers shall hold office at the pleasure of the Board and until their successors shall have been duly elected and qualified, unless sooner removed. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board.

(b)    Duties of Chief Executive Officer. The Chief Executive Officer shall preside at all meetings of the stockholders and at all meetings of the Board, unless the Chairman of the Board has been appointed and is present. The Chief Executive Officer of the Corporation shall, subject to the control of the Board, have general supervision, direction and control of the business and officers of the Corporation. The Chief Executive Officer shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers, as the Board shall designate from time to time.

(c)    Duties of Vice Presidents. The Vice Presidents may assume and perform the duties of the Chief Executive Officer in the absence or disability of the Chief Executive Officer or whenever the office of Chief Executive Officer is vacant. The Vice Presidents shall perform other duties commonly incident to their office and shall also perform such other duties and have such other powers as the Board or the Chief Executive Officer shall designate from time to time.

(d)    Duties of Secretary. The Secretary shall attend all meetings of the stockholders and of the Board and shall record all acts and proceedings thereof in the minute book of the Corporation. The Secretary shall give notice in conformity with these By-laws of all meetings of the stockholders and of all meetings of the Board and any committee thereof requiring notice.

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The Secretary shall perform all other duties provided for in these By-laws and other duties commonly incident to the office and shall also perform such other duties and have such other powers, as the Board shall designate from time to time. The Chief Executive Officer may direct any Assistant Secretary or other officer to assume and perform the duties of the Secretary in the absence or disability of the Secretary, and each Assistant Secretary shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board or the Chief Executive Officer shall designate from time to time.

(e)    Duties of Chief Financial Officer. The Chief Financial Officer shall keep or cause to be kept the books of account of the Corporation in a thorough and proper manner and shall render statements of the financial affairs of the Corporation in such form and as often as required by the Board or the Chief Executive Officer. The Chief Financial Officer, subject to the order of the Board, shall have the custody of all funds and securities of the Corporation. The Chief Financial Officer shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board or the Chief Executive Officer shall designate from time to time. To the extent that a Chief Financial Officer has been appointed and no Treasurer has been appointed, all references in these By-laws to the Treasurer shall be deemed references to the Chief Financial Officer. The Chief Executive Officer may direct the Treasurer, if any, or any Assistant Treasurer, or the Controller or any Assistant Controller to assume and perform the duties of the Chief Financial Officer in the absence or disability of the Chief Financial Officer, and each Treasurer and Assistant Treasurer and each Controller and Assistant Controller shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board or the Chief Executive Officer shall designate from time to time.

(f)    Duties of Treasurer. Unless another officer has been appointed Chief Financial Officer of the Corporation, the Treasurer shall be the chief financial officer of the Corporation and shall keep or cause to be kept the books of account of the Corporation in a thorough and proper manner and shall render statements of the financial affairs of the Corporation in such form and as often as required by the Board or the Chief Executive Officer, and, subject to the order of the Board, shall have the custody of all funds and securities of the Corporation. The Treasurer shall perform other duties commonly incident to the office and shall also perform such other duties and have such other powers as the Board or the Chief Executive Officer shall designate from time to time.

Section 3.    Delegation Of Authority. The Board may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision hereof.

Section 4.    Resignations. Any officer may resign at any time by giving notice in writing or by electronic transmission to the Board or to the Chief Executive Officer or to the Secretary. Any such resignation shall be effective when received by the person or persons to whom such notice is given, unless a later time is specified therein, in which event the resignation shall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any such resignation shall not be necessary to make it effective. Any resignation shall be without prejudice to the rights, if any, of the Corporation under any contract with the resigning officer.

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Section 5.    Removal. Any officer may be removed from office at any time, either with or without cause, by a resolution of the Board approved by the affirmative vote of a majority of the directors in office at the time, or by the unanimous written consent of the directors in office at the time, or by any committee or by the Chief Executive Officer or other superior officers upon whom such power of removal may have been conferred by the Board.

Article IV. Stock Certificates

Section 1.    Form And Execution Of Certificates. The shares of the Corporation shall be represented by certificates, or shall be uncertificated if so provided by resolution or resolutions of the Board. Certificates for the shares of stock, if any, shall be in such form as is consistent with the Certificate of Incorporation and applicable law. Every holder of stock represented by certificate in the Corporation shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman of the Board, or the Chief Executive Officer or any Vice President and by the Treasurer or Assistant Treasurer or the Secretary or Assistant Secretary, certifying the number of shares owned by him in the Corporation. Any or all of the signatures on the certificate may be facsimiles. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued with the same effect as if he were such officer, transfer agent, or registrar at the date of issue.

Section 2.    Lost Certificates. A new certificate or certificates shall be issued in place of any certificate or certificates 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. The Corporation may require, as a condition precedent to the issuance of a new certificate or certificates, the owner of such lost, stolen, or destroyed certificate or certificates, or the owner’s legal representative, to agree to indemnify the Corporation in such manner as it shall require or to give the Corporation a surety bond in such form and amount as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen, or destroyed.

Section 3.    Transfers.

(a)    Transfers of record of shares of stock of the Corporation shall be made only upon its books by the holders thereof, in person or by attorney duly authorized, and, in the case of stock represented by certificate, upon the surrender of a properly endorsed certificate or certificates for a like number of shares.

(b)    The Corporation shall have power to enter into and perform any agreement with any number of stockholders of any one or more classes of stock of the Corporation to restrict the transfer of shares of stock of the Corporation of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.

Section 4.    Registered Stockholders. 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

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to vote as such owner, 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 provided by the laws of Delaware.

Article V. Books and Records

The books and records of the Corporation may be kept at such places within or without the State of Delaware as the Board may from time to time determine.

Article VI. Dividends

Section 1.    Declaration Of Dividends. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation and applicable law, if any, may be declared by the Board pursuant to law at any regular or special meeting. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation and applicable law.

Section 2.    Dividend Reserve. 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 from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Board shall think conducive to the interests of the Corporation, and the Board may modify or abolish any such reserve in the manner in which it was created.

Article VII. Corporate Seal

The corporate seal shall be in the form adopted by the Board from time to time. Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. The seal may be affixed by any officer of the Corporation to any instrument executed by authority of the Corporation, and the seal when so affixed may be attested by the signature of any officer of the Corporation.

Article VIII. Amendment

These By-laws and any amendment thereof may be altered, amended or repealed, or new By-laws may be adopted by (i) the Board by resolution of the Board approved by the affirmative vote of a majority of the Entire Board acting at any special or regular meeting of the Board if, in addition to any other notice required by these By-laws and other applicable requirements contained herein, notice of such amendment, alteration or repeal is contained in the notice or waiver of notice of such meeting, which notice shall also include, without limitation, the text of any such proposed amendment and/or any resolution calling for any such amendment, alteration or repeal, or (ii) the stockholders, provided that, in addition to any other notice required by these By-laws and other applicable requirements contained herein, notice of such amendment, alteration or repeal is contained in the notice or waiver of notice of such meeting, which notice (or proxy statement accompanying such notice or accessible through a website URL provided in such notice or in a

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document accompanying such notice) shall also include, without limitation, the text of any such proposed amendment and/or any resolution calling for any such amendment, alteration or repeal.

Article IX. Governing Law; Exclusive Forum

As provided in Section 12 of the Certificate of Incorporation, these By-laws and the internal affairs of the Corporation shall be governed by and interpreted under the laws of the State of Delaware, excluding its conflict of laws principles. Unless the Corporation consents in writing to the selection of an alternative forum, 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 or officer (or affiliate of any of the foregoing) of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Certificate of Incorporation or these By-laws, or (iv) any other action asserting a claim arising under, in connection with, and governed by the internal affairs doctrine.

Article X. General Provisions

Section 1.    Section Headings. Section headings in these By-laws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.

Section 2.    Gender. All words used in these By-laws in the masculine gender shall extend to and shall include the feminine and neuter genders.

Section 3.    Time Periods. In applying any provision of these By-laws that requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, unless the use of business days are specified, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.

Section 4.    Evidence of Authority. A certificate by the Secretary, or an Assistant Secretary, or a temporary Secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the Corporation shall, as to all persons who rely on the certificate in good faith, be conclusive evidence of such action.

Section 5.    Certificate of Incorporation. All references in these By-laws to the “Certificate of Incorporation” shall be deemed to refer to the “Amended and Restated Certificate of Incorporation” of the Corporation, as amended and in effect from time to time, including the terms of any certificate of designations of any series of Preferred Stock.

Section 6.    By-law Provisions Additional and Supplemental to Provisions of Law. All restrictions, limitations, requirements and other provisions of these By-laws shall be construed, insofar as possible, as supplemental and additional to all provisions of law applicable to the subject

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matter thereof and shall be fully complied with in addition to the said provisions of law unless such compliance shall be illegal.

Section 7.    Interpretation. Unless the context requires otherwise, the general provisions, rules of construction, and definitions in the DGCL shall govern the construction of these By-laws. Reference in these By-laws to any provision of the DGCL shall be deemed to include all amendments thereof. The term “person” includes both a corporation and a natural person.

Section 8.    Inconsistent Provisions. In the event that any provision of these By-laws is or becomes inconsistent with any provision of the Certificate of Incorporation, the DGCL or any other applicable law, such provision of these By-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.

Section 9.    Severability. If any provision of these By-laws is determined to be illegal or unenforceable as such, such illegality or unenforceability shall not affect any other provision of these By-laws and such other provisions shall continue in full force and effect.

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THE MEET GROUP, INC.

CERTIFICATE OF AMENDMENT OF BY-LAWS

The undersigned hereby certifies that he or she is the duly elected, qualified, and acting Secretary or Assistant Secretary of THE MEET GROUP, INC., a Delaware corporation (the “Corporation”), and that the foregoing By-laws, comprising forty (40) pages, were amended and restated on November 2, 2018 by the Corporation’s Board of Directors.

IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand this 2nd day of November 2018.


/s/ Frederic Beckley    
Secretary

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