**Exhibit 3.2**

** **

**BYLAWS OF POLAR POWER, INC.**

 

ARTICLEI — CORPORATE OFFICES

 

1.1 REGISTERED OFFICE

 

The registered office of Polar Power, Inc.(the “**Corporation**”) shall be fixed in the Corporation’s Certificate of Incorporation (the “**Certificateof Incorporation**”). References in these Bylaws (the “**Bylaws**”) to the Certificate of Incorporationshall mean the Certificate of Incorporation of the Corporation, as amended from time to time, including the terms of any certificatesof designation of any series of Preferred Stock.

 

1.2 OTHER OFFICES

 

The Corporation may at any time establishother offices at any place or places.

 

ARTICLEII — MEETINGS OF STOCKHOLDERS

 

2.1 PLACE OF MEETINGS

 

Meetings of stockholders shall be held atany place, within or outside the State of Delaware, designated by the Corporation’s Board of Directors (the “**Boardof Directors**”). The Board of Directors may, in its sole discretion, determine that a meeting of stockholders shall notbe held at any place, but may instead be held solely by means of remote communication as authorized by Section 211(a)(2) of theGeneral Corporation Law of the State of Delaware (the “**DGCL**”). In the absence of any such designation or determination,stockholders’ meetings shall be held at the Corporation’s principal executive office.

 

2.2 ANNUAL MEETING

 

The annual meeting of stockholders shallbe held on such date, at such time, and at such place (if any) within or without the State of Delaware as shall be designated fromtime to time by the Board of Directors and stated in the Corporation’s notice of the meeting. At the annual meeting, directorsshall be elected and any other proper business, brought in accordance with Section 2.4 of these Bylaws, may be transacted.

 

2.3 SPECIAL MEETING

 

(i) A special meeting of the stockholders,other than those required by statute, may be called at any time only by the affirmative vote of a majority of the Whole Board.A special meeting of the stockholders may not be called by any other person or persons. The Board of Directors, by the affirmativevote of a majority of the Whole Board, may cancel, postpone or reschedule any previously scheduled special meeting at any time,before or after the notice for such meeting has been sent to the stockholders. For purposes of these Bylaws, the term “**WholeBoard**” shall mean the total number of authorized directors whether or not there exist any vacancies in previously authorizeddirectorships.

 

(ii) The notice of a special meeting shallinclude the purpose for which the meeting is called. Only such business shall be conducted at a special meeting of stockholdersas shall have been brought before the meeting by or at the direction of the Board of Directors. Nothing contained in this Section2.3(ii) shall be construed as limiting, fixing or affecting the time when a meeting of stockholders called by action of theBoard of Directors may be held.

 

 

 

2.4 ADVANCE NOTICE PROCEDURES

 

(i) Advance Notice of Stockholder Business.At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before themeeting. To be properly brought before an annual meeting, business must be brought: (A) pursuant to the Corporation’s proxymaterials with respect to such meeting, (B) by or at the direction of the Board of Directors, or (C) by a stockholder of the Corporationwho (1) is a stockholder of record at the time of the giving of the notice required by this Section 2.4(i) and on the recorddate for the determination of stockholders entitled to vote at the annual meeting and (2) has timely complied in proper writtenform with the notice procedures set forth in this Section 2.4(i). In addition, for business to be properly brought beforean annual meeting by a stockholder, such business must be a proper matter for stockholder action pursuant to these Bylaws and applicablelaw. Except for proposals properly made in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, and the rulesand regulations thereunder (as so amended and inclusive of such rules and regulations, the “**1934 Act**”), clause(C) above shall be the exclusive means for a stockholder to bring business before an annual meeting of stockholders.

 

(a) To comply with clause (C) of Section2.4(i), a stockholder’s notice must set forth all information required under this Section 2.4(i) and must be timelyreceived by the chief executive officer of the Corporation. To be timely, a stockholder’s notice must be received by thesecretary at the principal executive offices of the Corporation not later than the 45th day nor earlier than the 75th day beforethe one-year anniversary of the date on which the Corporation first mailed its proxy materials or a notice of availability of proxymaterials (whichever is earlier) for the preceding year’s annual meeting; *provided*, *however*, that in the eventthat no annual meeting was held in the previous year or if the date of the annual meeting is advanced by more than 30 days priorto or delayed by more than 60 days after the one-year anniversary of the date of the previous year’s annual meeting, then,for notice by the stockholder to be timely, it must be so received by the secretary not earlier than the close of business on the120th day prior to such annual meeting and not later than the close of business on the later of (i) the 90th day prior to suchannual meeting, or (ii) the tenth day following the day on which Public Announcement (as defined below) of the date of such annualmeeting is first made. In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commencea new time period for the giving of a stockholder’s notice as described in this Section 2.4(i)(a). “**PublicAnnouncement**” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or acomparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commissionpursuant to Section 13, 14 or 15(d) of the 1934 Act.

 

 

 

(b) To be in proper written form, a stockholder’snotice to the secretary must set forth as to each matter of business the stockholder intends to bring before the annual meeting:(1) a brief description of the business intended to be brought before the annual meeting, the text of the proposed business (includingthe text of any resolutions proposed for consideration) and the reasons for conducting such business at the annual meeting, (2)the name and address, as they appear on the Corporation’s books, of the stockholder proposing such business and any StockholderAssociated Person (as defined below), (3) the class and number of shares of the Corporation that are held of record or are beneficiallyowned by the stockholder or any Stockholder Associated Person and any derivative positions held or beneficially held by the stockholderor any Stockholder Associated Person as of the date of delivery of such notice, (4) whether and the extent to which any hedgingor other transaction or series of transactions has been entered into by or on behalf of such stockholder or any Stockholder AssociatedPerson with respect to any securities of the Corporation, and a description of any other agreement, arrangement or understanding(including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, orto manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such stockholder orany Stockholder Associated Person with respect to any securities of the Corporation, (5) any material interest of the stockholderor a Stockholder Associated Person in such business, and (6) a statement whether either such stockholder or any Stockholder AssociatedPerson will deliver a proxy statement and form of proxy to holders of at least the percentage of the voting power of the Corporation’svoting shares required under applicable law to carry the proposal (such information provided and statements made as required byclauses (1) through (6) above, a “**Business Solicitation Statement**”). In addition, to be in proper written form,a stockholder’s notice to the secretary must be supplemented not later than ten days following the record date for noticeof the meeting to disclose the information contained in clauses (3) and (4) above as of the record date for notice of the meeting.For purposes of this Section 2.4, a “**Stockholder Associated Person**” of any stockholder shall mean (i)any person controlling, directly or indirectly, or acting in concert with, such stockholder, (ii) any beneficial owner of sharesof stock of the Corporation owned of record or beneficially by such stockholder and on whose behalf the proposal or nomination,as the case may be, is being made, or (iii) any person controlling, controlled by or under common control with such person referredto in the preceding clauses (i) and (ii).

 

(c) Without exception, no business shallbe conducted at any annual meeting except in accordance with the provisions set forth in this Section 2.4(i) and, if applicable,Section 2.4(ii). In addition, business proposed to be brought by a stockholder may not be brought before the annual meetingif such stockholder or a Stockholder Associated Person, as applicable, takes action contrary to the representations made in theBusiness Solicitation Statement applicable to such business or if the Business Solicitation Statement applicable to such businesscontains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein notmisleading. The chairperson of the annual meeting shall, if the facts warrant, determine and declare at the annual meeting thatbusiness was not properly brought before the annual meeting and in accordance with the provisions of this Section 2.4(i),and, if the chairperson should so determine, he or she shall so declare at the annual meeting that any such business not properlybrought before the annual meeting shall not be conducted.

 

(ii) Advance Notice of Director Nominationsat Annual Meetings. Notwithstanding anything in these Bylaws to the contrary, only persons who are nominated in accordancewith the procedures set forth in this Section 2.4(ii) shall be eligible for election or re-election as directors at an annualmeeting of stockholders. Nominations of persons for election or re-election to the Board of Directors of the Corporation shallbe made at an annual meeting of stockholders only (A) by or at the direction of the Board of Directors or (B) by a stockholderof the Corporation who (1) was a stockholder of record at the time of the giving of the notice required by this Section 2.4(ii)and on the record date for the determination of stockholders entitled to vote at the annual meeting and (2) has complied with thenotice procedures set forth in this Section 2.4(ii). In addition to any other applicable requirements, for a nominationto be made by a stockholder, the stockholder must have given timely notice thereof in proper written form to the secretary of theCorporation.

 

 

 

(a) To comply with clause (B) of Section2.4(ii), a nomination to be made by a stockholder must set forth all information required under this Section 2.4(ii)and must be received by the secretary of the Corporation at the principal executive offices of the Corporation at the time setforth in, and in accordance with, the final three sentences of Section 2.4(i)(a); *provided*, *however*, thatin the event the number of directors to be elected to the Board of Directors is increased and there is no Public Announcement namingall of the nominees for director or specifying the size of the increased board made by the Corporation at least ten (10) days beforethe last day a stockholder may deliver notice of nomination pursuant to the foregoing provisions, a stockholder’s noticerequired by this Section 2.4(ii) shall also be considered timely, but only with respect to nominees for any new positionscreated by such increase, if it shall be received by the secretary at the principal executive offices of the Corporation not laterthan the close of business on the tenth day following the date on which such Public Announcement is first made by the Corporation.

 

(b) To be in proper written form, suchstockholder’s notice to the secretary must set forth:

 

(1) as to each person (a “**nominee**”)whom the stockholder proposes to nominate for election or re-election as a director: (A) the name, age, business address and residenceaddress of the nominee, (B) the principal occupation or employment of the nominee, (C) the class and number of shares of the Corporationthat are held of record or are beneficially owned by the nominee and any derivative positions held or beneficially held by thenominee, (D) whether and the extent to which any hedging or other transaction or series of transactions has been entered into byor on behalf of the nominee with respect to any securities of the Corporation, and a description of any other agreement, arrangementor understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigateloss to, or to manage the risk or benefit of share price changes for, or to increase or decrease the voting power of the nominee,(E) a description of all arrangements or understandings between or among the stockholder and each nominee and any other personor persons (naming such person or persons) pursuant to which the nominations are to be made by the stockholder or concerning thenominee’s potential service on the Board of Directors, (F) a written statement executed by the nominee acknowledging thatas a director of the Corporation, the nominee will owe fiduciary duties under Delaware law with respect to the Corporation andits stockholders, and (G) any other information relating to the nominee that would be required to be disclosed about such nomineeif proxies were being solicited for the election or re-election of the nominee as a director, or that is otherwise required, ineach case pursuant to Regulation 14A under the 1934 Act (including without limitation the nominee’s written consent to beingnamed in the proxy statement, if any, as a nominee and to serving as a director if elected or re-elected, as the case may be);and

 

(2) as to such stockholder giving notice,(A) the information required to be provided pursuant to clauses (2) through (5) of Section 2.4(i)(b), and the supplementreferenced in the second sentence of Section 2.4(i)(b) (except that the references to “business” in such clausesshall instead refer to nominations of directors for purposes of this paragraph), and (B) a statement whether either such stockholderor Stockholder Associated Person will deliver a proxy statement and form of proxy to holders of at least the percentage of votingpower of the Corporation’s voting shares reasonably believed by such stockholder or Stockholder Associated Person to be necessaryto elect or re-elect such nominee(s) (such information provided and statements made as required by clauses (A) and (B) above, a“**Nominee Solicitation Statement**”).

 

 

 

(c) At the request of the Board of Directors,any person nominated by a stockholder for election or re-election as a director must furnish to the secretary of the Corporation(1) that information required to be set forth in the stockholder’s notice of nomination of such person as a director as ofa date subsequent to the date on which the notice of such person’s nomination was given, (2) such other information as mayreasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as an independent directoror audit committee financial expert of the Corporation under applicable law, securities exchange rule or regulation, or any publiclydisclosed corporate governance guideline or committee charter of the Corporation and (3) such other information that could be materialto a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee; in the absence of thefurnishing of any such information of the kind specified in this Section 2.4(ii)(c) if requested, such stockholder’snomination shall not be considered in proper form pursuant to this Section 2.4(ii).

 

(d) Without exception, no person shallbe eligible for election or re-election as a director of the Corporation at an annual meeting of stockholders unless nominatedin accordance with the provisions set forth in this Section 2.4(ii). In addition, a nominee shall not be eligible for electionor re-election if a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the representations madein the Nominee Solicitation Statement applicable to such nominee or if the Nominee Solicitation Statement applicable to such nomineecontains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein notmisleading. The chairperson of the annual meeting shall, if the facts warrant, determine and declare at the annual meeting thata nomination was not made in accordance with the provisions prescribed by these Bylaws, and if the chairperson should so determine,he or she shall so declare at the annual meeting, and the defective nomination shall be disregarded.

 

(iii) Advance Notice of Director Nominationsfor Special Meetings.

 

(a) If the Board of Directors has authorizedin the specific case that stockholders may fill a vacancy or newly created directorship at a special meeting of stockholders, anda special meeting has been properly called for such purpose, nominations of persons for election or appointment to the Board ofDirectors at such special meeting shall be made only (1) by or at the direction of the Board of Directors or (2) by any stockholderof the Corporation who (A) is a stockholder of record at the time of the giving of the notice required by this Section 2.4(iii)and on the record date for the determination of stockholders entitled to vote at the special meeting and (B) delivers a timelywritten notice of the nomination to the secretary of the Corporation that includes the information set forth in Sections 2.4(ii)(b)and (ii)(c). To be timely, such notice must be received by the secretary at the principal executive offices of the Corporationnot later than the close of business on the later of the 90th day prior to such special meeting or the tenth day following theday on which Public Announcement is first made of the date of the special meeting and of the nominees proposed by the Board ofDirectors to be elected or appointed at such meeting. A person shall not be eligible for election or appointment as a directorat a special meeting unless the person is nominated (i) by or at the direction of the Board of Directors or (ii) by a stockholderin accordance with the notice procedures set forth in this Section 2.4(iii). In addition, a nominee shall not be eligiblefor election or appointment if a stockholder or Stockholder Associated Person, as applicable, takes action contrary to the representationsmade in the Nominee Solicitation Statement applicable to such nominee or if the Nominee Solicitation Statement applicable to suchnominee contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements thereinnot misleading. Any person nominated in accordance with this Section 2.4(iii) is subject to, and must comply with, the provisionsof Section 2.4(ii)(c).

 

 

 

(b) The chairperson of such special meetingshall, if the facts warrant, determine and declare at the meeting that a nomination or business was not made in accordance withthe procedures prescribed by these Bylaws, and if the chairperson should so determine, he or she shall so declare at the meeting,and the defective nomination or business shall be disregarded.

 

(iv) Other Requirements and Rights.In addition to the foregoing provisions of this Section 2.4, a stockholder must also comply with all applicable requirementsof state law and of the 1934 Act with respect to the matters set forth in this Section 2.4. Nothing in this Section 2.4shall be deemed to affect any rights of:

 

(a) a stockholder to request inclusionof proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under the 1934 Act;or

 

(b) the Corporation to omit a proposalfrom the Corporation’s proxy statement pursuant to Rule 14a-8 (or any successor provision) under the 1934 Act.

 

2.5 NOTICE OF STOCKHOLDERS’ MEETINGS

 

Whenever stockholders are required or permittedto take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hourof the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be presentin person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such dateis different from the record date for determining stockholders entitled to notice of the meeting, and, in the case of a specialmeeting, the purpose or purposes for which the meeting is called. Except as otherwise provided in the DGCL, the Certificate ofIncorporation or these Bylaws, the written notice of any meeting of stockholders shall be given not less than 10 nor more than60 days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determiningthe stockholders entitled to notice of the meeting.

 

2.6 QUORUM

 

The holders of a majority of the votingpower of the stock issued, outstanding and entitled to vote, present in person or represented by proxy, shall constitute a quorumfor the transaction of business at all meetings of the stockholders, unless otherwise required by law, the Certificate of Incorporation,these Bylaws or the rules of any applicable stock exchange. Where a separate vote by a class or series or classes or series isrequired, a majority of the voting power of the then-issued and outstanding shares of such class or series or classes or series,present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on thatmatter, except as otherwise required by law, the Certificate of Incorporation, these Bylaws or the rules of any applicable stockexchange.

 

 

 

If a quorum is not present or representedat any meeting of the stockholders, then either (i) the chairperson of the meeting, or (ii) the stockholders entitled to vote atthe meeting, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without noticeother than announcement at the meeting, until a quorum is present or represented. The chairperson of the meeting shall have theauthority to adjourn a meeting of the stockholders in all other events. At such adjourned meeting at which a quorum is presentor represented, any business may be transacted that might have been transacted at the meeting as originally noticed.

 

2.7 ADJOURNED MEETING; NOTICE

 

When a meeting is adjourned to another timeor place, unless these Bylaws 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 inperson 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 morethan 30 days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Ifafter the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directorsshall fix a new record date for notice of such adjourned meeting in accordance with Section 213(a) of the DGCL and Section 2.11ofthese Bylaws, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meetingas of the record date fixed for notice of such adjourned meeting.

 

2.8 CONDUCT OF BUSINESS

 

The chairperson of any meeting of stockholdersshall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and theconduct of business. The chairperson of any meeting of stockholders shall be designated by the Board of Directors; in the absenceof such designation, the chairperson of the Board of Directors, if any, the chief executive officer (in the absence of the chairperson)or the president (in the absence of the chairperson of the Board of Directors and the chief executive officer), or in their absenceany other executive officer of the Corporation, shall serve as chairperson of the stockholder meeting.

 

2.9 VOTING

 

The stockholders entitled to vote at anymeeting of stockholders shall be determined in accordance with the provisions of Section 2.11 of these Bylaws, subject toSection 217 (relating to voting rights of fiduciaries, pledgors and joint owners of stock) and Section 218 (relating to votingtrusts and other voting agreements) of the DGCL.

 

Except as may be otherwise provided in theCertificate of Incorporation, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder.

 

 

 

Except as otherwise provided by law, theCertificate of Incorporation, these Bylaws or the rules of any applicable stock exchange, in all matters other than the electionof directors, the affirmative vote of a majority of the voting power of the shares present in person or represented by proxy atthe meeting and entitled to vote on the subject matter shall be the act of the stockholders. Except as otherwise required by law,the Certificate of Incorporation, these Bylaws or the rules of any applicable stock exchange, directors shall be elected by a pluralityof the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the electionof directors. Where a separate vote by a class or series or classes or series is required, in all matters other than the electionof directors, the affirmative vote of the majority of the voting power of shares of such class or series or classes or series presentin person or represented by proxy at the meeting shall be the act of such class or series or classes or series, except as otherwiseprovided by law, the Certificate of Incorporation, these Bylaws or the rules of any applicable stock exchange.

 

2.10 STOCKHOLDER ACTION BY WRITTEN CONSENTWITHOUT A MEETING

 

Unless otherwise provided in the Certificateof Incorporation, any action required by statute to be taken at any annual or special of the stockholders, or any action whichmay be taken at an annual or special meeting of stockholders, may be taken without a meeting, without prior notice and withouta vote, if a consent or consents in writing, setting forth the action so taken, shall be (i) signed by the holders of record onthe record date (established in the manner set forth in Section 2.11 below and Article VIII of the Corporation’sCertificate of Incorporation) of outstanding shares of the Corporation having not less than the minimum number of votes that wouldbe necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted;*provided*, *however*, that in the case of the election or removal of directors by written consent, such consent shallbe effective only if signed by the holders of all outstanding shares entitled to vote for the election of directors, and (ii) deliveredto the Corporation in accordance with Section 228 of the DGCL.

 

2.11 RECORD DATES

 

In order that the Corporation may determinethe stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may fix arecord date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Boardof Directors and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Boardof Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at suchmeeting unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the dateof the meeting shall be the date for making such determination.

 

If no record date is fixed by the Boardof Directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shallbe at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close ofbusiness on the day next preceding the day on which the meeting is held.

 

A determination of stockholders of recordentitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; *provided*, *however*,that the Board of Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting,and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or anearlier date as that fixed for determination of stockholders entitled to vote in accordance with the provisions of Section 213of the DGCL and this Section 2.11 at the adjourned meeting.

 

 

 

In order that the Corporation may determinethe stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholdersentitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawfulaction, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixingthe record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed,the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Boardof Directors adopts the resolution relating thereto.

 

2.12 PROXIES

 

Each stockholder entitled to vote at a meetingof stockholders may authorize another person or persons to act for such stockholder by proxy authorized by an instrument in writingor by a transmission permitted by law filed in accordance with the procedure established for the meeting, but no such proxy shallbe voted or acted upon after three years from its date, unless the proxy provides for a longer period. The revocability of a proxythat states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL. A written proxymay be in the form of a telegram, cablegram, or other means of electronic transmission which sets forth or is submitted with informationfrom which it can be determined that the telegram, cablegram, or other means of electronic transmission was authorized by the stockholder.

 

2.13 LIST OF STOCKHOLDERS ENTITLED TO VOTE

 

The officer who has charge of the stockledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of thestockholders entitled to vote at the meeting; *provided*, *however*, if the record date for determining the stockholdersentitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of thetenth day before the meeting date. The stockholder list shall be arranged in alphabetical order and show the address of each stockholderand the number of shares registered in the name of each stockholder. The Corporation shall not be required to include electronicmail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholderfor any purpose germane to the meeting for a period of at least 10 days prior to the meeting (i) on a reasonably accessible electronicnetwork, 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 Corporation’s principal place of business. In the event that the Corporation determinesto make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such informationis available only to stockholders of the Corporation. If the meeting is to be held at a place (as opposed to solely by means ofremote communication), then a list shall be produced and kept at the time and place of the meeting during the whole time thereof,and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, thena list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessibleelectronic network, and the information required to access such list shall be provided with the notice of the meeting. The stockledger of the Corporation shall be the only evidence as to the identity of the stockholders entitled to examine the stock listand vote at the meeting and the number of shares held by each of them.

 

 

 

2.14 INSPECTORS OF ELECTION

 

Before any meeting of stockholders, theBoard of Directors shall appoint an inspector or inspectors of election to act at the meeting or its adjournment. The number ofinspectors shall be either one or three. If any person appointed as inspector fails to appear or fails or refuses to act, thenthe chairperson of the meeting shall appoint a person to fill that vacancy.

 

Each inspector, before entering upon thedischarge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartialityand according to the best of his or her ability. The inspector or inspectors so appointed and designated shall (i) ascertain thenumber of shares of capital stock of the Corporation outstanding and the voting power of each share, (ii) determine the sharesof capital stock of the Corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes andballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determinationby the inspectors, and (v) certify their determination of the number of shares of capital stock of the Corporation representedat the meeting and such inspector or inspectors’ count of all votes and ballots.

 

In determining the validity and countingof proxies and ballots cast at any meeting of stockholders of the Corporation, the inspector or inspectors may consider such informationas is permitted by applicable law. If there are three inspectors of election, the decision, act or certificate of a majority iseffective in all respects as the decision, act or certificate of all.

 

ARTICLEIII — DIRECTORS

 

3.1 POWERS

 

The business and affairs of the Corporationshall be managed by or under the direction of the Board of Directors, except as may be otherwise provided in the DGCL or the Certificateof Incorporation.

 

3.2 NUMBER OF DIRECTORS

 

The Board of Directors shall consist ofone or more members, each of whom shall be a natural person. Unless the Certificate of Incorporation fixes the number of directors,the number of directors shall be determined from time to time solely by resolution of the Whole Board. No reduction of the authorizednumber of directors shall have the effect of removing any director before that director’s term of office expires.

 

3.3 ELECTION, QUALIFICATION AND TERM OFOFFICE OF DIRECTORS

 

Except as provided in Section 3.4of these Bylaws, each director, including a director elected to fill a vacancy, shall hold office until the expiration of the termfor which elected and until such director’s successor is elected and qualified or until such director’s earlier death,resignation or removal. Directors need not be stockholders unless so required by the Certificate of Incorporation or these Bylaws.The Certificate of Incorporation or these Bylaws may prescribe other qualifications for directors.

 

 

 

Notwithstanding anything in these Bylawsto the contrary, any nominee for director in an uncontested election who receives a greater number of votes “withheld”from his or her election than votes “for” his or her election must tender his or her resignation to the Board of Directorsfor consideration by the Board of Directors.

 

3.4 RESIGNATION AND VACANCIES

 

Any director may resign at any time uponnotice given in writing or by electronic transmission to the Corporation; *provided*, *however*, that if such noticeis given by electronic transmission, such electronic transmission must either set forth or be submitted with information from whichit can be determined that the electronic transmission was authorized by the director. A resignation is effective when the resignationis delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an eventor events. Unless otherwise specified in the notice of resignation, acceptance of such resignation shall not be necessary to makeit effective. A resignation which is conditioned upon the director failing to receive a specified vote for reelection as a directormay provide that it is irrevocable. Unless otherwise provided in the Certificate of Incorporation or these Bylaws, when one ormore directors resign from the Board of Directors, effective at a future date, a majority of the directors then in office, includingthose who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignationor resignations shall become effective.

 

Unless otherwise provided in the Certificateof Incorporation or these Bylaws or if authorized by resolution of the Board of Directors, vacancies and newly created directorshipsresulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote asa single class shall be filled only by a majority of the directors then in office, although less than a quorum, or by a sole remainingdirector, and not by the stockholders. If the directors are divided into classes, a person so elected by the directors then inoffice to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such directorshall have been chosen and until his or her successor shall have been duly elected and qualified.

 

If, at the time of filling any vacancy orany newly created directorship, the directors then in office constitute less than a majority of the whole Board of Directors (asconstituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholdersholding at least 10% of the voting power of the capital stock of the Corporation at the time outstanding having the right to votefor such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replacethe directors chosen by the directors then in office as aforesaid, which election shall be governed by the provisions of Section211 of the DGCL as far as applicable.

 

3.5 PLACE OF MEETINGS; MEETINGS BY TELEPHONE

 

The Board of Directors may hold meetings,both regular and special, either within or outside the State of Delaware.

 

 

 

Unless otherwise restricted by the Certificateof Incorporation or these Bylaws, members of the Board of Directors may participate in a meeting of the Board of Directors by meansof conference telephone or other communications equipment by means of which all persons participating in the meeting can hear eachother, and such participation in a meeting shall constitute presence in person at the meeting.

 

3.6 REGULAR MEETINGS

 

Regular meetings of the Board of Directorsmay be held without notice at such time and at such place as shall from time to time be determined by the Board of Directors.

 

3.7 SPECIAL MEETINGS; NOTICE

 

Special meetings of the Board of Directorsfor any purpose or purposes may be called at any time by the chairperson of the Board of Directors, the chief executive officer,the president, the secretary or a majority of the authorized number of directors, at such times and places as he or she or theyshall designate.

 

Notice of the time and place of specialmeetings shall be:

 

(i) delivered personally by hand, by courieror by telephone;

 

(ii) sent by United States first-class mail,postage prepaid;

 

(iii) sent by facsimile; or

 

(iv) sent by electronic mail,

 

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.

 

If the notice is (i) delivered personallyby hand, by courier or by telephone, (ii) sent by facsimile or (iii) sent by electronic mail, it shall be delivered or sent atleast 24 hours before the time of the holding of the meeting. If the notice is sent by United States mail, it shall be depositedin the United States mail at least four days before the time of the holding of the meeting. Any oral notice may be communicatedto the director. The notice need not specify the place of the meeting (if the meeting is to be held at the Corporation’sprincipal executive office) nor the purpose of the meeting.

 

3.8 QUORUM; VOTING

 

At all meetings of the Board of Directors,a majority of the total authorized number of directors shall constitute a quorum for the transaction of business. If a quorum isnot present at any meeting of the Board of Directors, then the directors present thereat may adjourn the meeting from time to time,without notice other than announcement at the meeting, until a quorum is present.

 

The affirmative vote of a majority of thedirectors present at any meeting at which a quorum is present shall be the act of the Board of Directors, except as may be otherwisespecifically provided by statute, the Certificate of Incorporation or these Bylaws.

 

 

 

If the Certificate of Incorporation providesthat one or more directors shall have more or less than one vote per director on any matter, every reference in these Bylaws toa majority or other proportion of the directors shall refer to a majority or other proportion of the votes of the directors.

 

3.9 BOARD ACTION BY WRITTEN CONSENT WITHOUTA MEETING

 

Unless otherwise restricted by the Certificateof Incorporation, these Bylaws or statute, any action required or permitted to be taken at any meeting of the Board of Directors,or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or committee, as the casemay be, consent thereto in writing or by electronic transmission and the writing or writings or electronic transmission or transmissionsare filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be in paper form if the minutesare maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Any person (whetheror not then a director) may provide, whether through instruction to an agent or otherwise, that a consent to action will be effectiveat a future time (including a time determined upon the happening of an event), no later than 60 days after such instruction isgiven or such provision is made and such consent shall be deemed to have been given for purposes of this Section 3.9 atsuch effective time so long as such person is then a director and did not revoke the consent prior to such time. Any such consentshall be revocable prior to its becoming effective.

 

3.10 FEES AND COMPENSATION OF DIRECTORS

 

Unless otherwise restricted by the Certificateof Incorporation, these Bylaws or statute, the Board of Directors shall have the authority to fix the compensation of directors.

 

3.11 REMOVAL OF DIRECTORS

 

A director may be removed from office bythe stockholders of the Corporation with or without cause.

 

No reduction of the authorized number ofdirectors shall have the effect of removing any director prior to the expiration of such director’s term of office.

 

ARTICLEIV — COMMITTEES

 

4.1 COMMITTEES OF DIRECTORS

 

The Board of Directors may designate oneor more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designateone or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting ofthe committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meetingand not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another memberof the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, tothe extent provided in the resolution of the Board of Directors or in these Bylaws, shall have and may exercise all the powersand authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize theseal of the Corporation to be affixed to all papers that may require it; but no such committee shall have the power or authorityto (i) approve or adopt, or recommend to the stockholders, any action or matter (other than the election or removal of directors)expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the Corporation.

 

 

 

4.2 COMMITTEE MINUTES

 

Each committee shall keep regular minutesof its meetings and report the same to the Board of Directors when required.

 

4.3 MEETINGS AND ACTION OF COMMITTEES

 

Meetings and actions of committees shallbe governed by, and held and taken in accordance with, the provisions of:

 

(i) Section 3.5 (place of meetingsand meetings by telephone);

 

(ii) Section 3.6 (regular meetings);

 

(iii) Section 3.7 (special meetings;notice);

 

(iv) Section 3.8 (quorum; voting);

 

(v) Section 3.9 (action without a meeting);and

 

(vi) Section 7.5 (waiver of notice)

 

with such changes in the context of those Bylaws as are necessaryto substitute the committee and its members for the Board of Directors and its members. However:

 

(i) the time of regular meetings of committeesmay be determined by resolution of the committee;

 

(ii) special meetings of committees may alsobe called by resolution of the committee; and

 

(iii) notice of special meetings of committeesshall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The Board of Directorsor a committee may adopt rules for the government of any committee not inconsistent with the provisions of these Bylaws.

 

Any provision in the Certificate of Incorporationproviding that one or more directors shall have more or less than one vote per director on any matter shall apply to voting inany committee or subcommittee, unless otherwise provided in the Certificate of Incorporation or these Bylaws.

 

4.4 SUBCOMMITTEES

 

Unless otherwise provided in the Certificateof Incorporation, these Bylaws or the resolutions of the Board of Directors designating the committee, a committee may create oneor more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee anyor all of the powers and authority of the committee.

 

 

 

ARTICLEV — OFFICERS

 

5.1 OFFICERS

 

The officers of the Corporation shall bea president and a secretary. The Corporation may also have, at the discretion of the Board of Directors, a chairperson of the Boardof Directors, a vice chairperson of the Board of Directors, a chief executive officer, a chief financial officer or treasurer,one or more vice presidents, one or more assistant vice presidents, one or more assistant treasurers, one or more assistant secretaries,and any such other officers as may be appointed in accordance with the provisions of these Bylaws. Any number of offices may beheld by the same person.

 

5.2 APPOINTMENT OF OFFICERS

 

The Board of Directors shall appoint theofficers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3 ofthese Bylaws, subject to the rights, if any, of an officer under any contract of employment. A vacancy in any office because ofdeath, resignation, removal, disqualification or any other cause shall be filled in the manner prescribed in this Article V forthe regular election to such office.

 

5.3 SUBORDINATE OFFICERS

 

The Board of Directors may appoint, or empowerthe chief executive officer or, in the absence of a chief executive officer, the president, to appoint, such other officers andagents as the business of the Corporation may require. Each of such officers and agents shall hold office for such period, havesuch authority, and perform such duties as are provided in these Bylaws or as the Board of Directors may from time to time determine.

 

5.4 REMOVAL AND RESIGNATION OF OFFICERS

 

Subject to the rights, if any, of an officerunder any contract of employment, any officer may be removed, either with or without cause, by the Board of Directors or by anyofficer upon whom such power of removal may be conferred by the Board of Directors, except that, unless specifically approved bythe Board of Directors, officers may not remove other officers chosen by the Board of Directors.

 

Any officer may resign at any time by givingwritten or electronic notice to the Corporation; *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 electronictransmission was authorized by the officer. Any resignation shall take effect at the date of the receipt of that notice or at anylater time specified in that notice. Unless otherwise specified in the notice of resignation, the acceptance of the resignationshall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Corporation underany contract to which the officer is a party.

 

5.5 VACANCIES IN OFFICES

 

Any vacancy occurring in any office of theCorporation shall be filled by the Board of Directors or as provided in Section 5.3.

 

 

 

5.6 REPRESENTATION OF SHARES OR INTERESTSOF OTHER CORPORATIONS OR ENTITIES

 

The chairperson of the Board of Directors,the president, any vice president, the treasurer, the secretary or any assistant secretary of this Corporation, or any other personauthorized by the Board of Directors or the president or a vice president, is authorized to vote, represent, and exercise on behalfof this Corporation all rights incident to any and all shares or equity interests of any other corporation or corporations or entityor entities standing in the name of this Corporation, including the right to act by written consent. The authority granted hereinmay be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executedby such person having the authority.

 

5.7 AUTHORITY AND DUTIES OF OFFICERS

 

All officers of the Corporation shall respectivelyhave such authority and perform such duties in the management of the business of the Corporation as may be designated from timeto time by the Board of Directors and, to the extent not so provided, as generally pertain to their respective offices, subjectto the control of the Board of Directors.

 

ARTICLEVI — STOCK

 

6.1 STOCK CERTIFICATES; PARTLY PAID SHARES

 

The shares of the Corporation shall be representedby certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classesor series of its stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificateuntil such certificate is surrendered to the Corporation. Every holder of stock represented by certificates shall be entitled tohave a certificate signed by, or in the name of the Corporation by the chairperson of the Board of Directors or vice-chairpersonof the Board of Directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretaryor an assistant secretary of the Corporation representing the number of shares registered in certificate form. Any or all of thesignatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimilesignature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificateis issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrarat the date of issue. The Corporation shall not have power to issue a certificate in bearer form.

 

The Corporation may issue the whole or anypart of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon the faceor back of each stock certificate issued to represent any such partly-paid shares, or upon the books and records of the Corporationin the case of uncertificated partly-paid shares, the total amount of the consideration to be paid therefor and the amount paidthereon shall be stated. Upon the declaration of any dividend on fully-paid shares, the Corporation shall declare a dividend uponpartly-paid shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.

 

 

 

6.2 SPECIAL DESIGNATION ON CERTIFICATES

 

If the Corporation is authorized to issuemore than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and therelative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitationsor restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificatethat the Corporation shall issue to represent such class or series of stock; *provided*, *however*, that, except as otherwiseprovided in Section 202 of the DGCL, in lieu of the foregoing requirements there may be set forth on the face or back of the certificatethat the Corporation shall issue to represent such class or series of stock, a statement that the Corporation will furnish withoutcharge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or otherspecial rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferencesand/or rights. Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to theregistered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuantto this Section 6.2 or Sections 151, 156, 202(a) or 218(a) of the DGCL or with respect to this Section 6.2 a statementthat the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences andrelative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitationsor restrictions of such preferences and/or rights. Except as otherwise expressly provided by law, the rights and obligations ofthe holders of uncertificated stock and the rights and obligations of the holders of certificates representing stock of the sameclass and series shall be identical.

 

6.3 LOST, STOLEN OR DESTROYED CERTIFICATES

 

Except as provided in this Section 6.3,no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered to theCorporation and cancelled at the same time. The Corporation may issue a new certificate of stock or uncertificated shares in theplace of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may requirethe owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bondsufficient to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction ofany such certificate or the issuance of such new certificate or uncertificated shares.

 

6.4 DIVIDENDS

 

The Board of Directors, subject to any restrictionscontained in the Certificate of Incorporation or applicable law, may declare and pay dividends upon the shares of the Corporation’scapital stock. Dividends may be paid in cash, in property, or in shares of the Corporation’s capital stock, subject to theprovisions of the Certificate of Incorporation.

 

The Board of Directors may set apart outof any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish anysuch reserve.

 

6.5 TRANSFER OF STOCK

 

Transfers of record of shares of stock ofthe Corporation shall be made only upon its books by the holders thereof, in person or by an attorney duly authorized, and, ifsuch stock is certificated, upon the surrender of a certificate or certificates for a like number of shares, properly endorsedor accompanied by proper evidence of succession, assignation or authority to transfer; *provided*, *however*, that suchsuccession, assignment or authority to transfer is not prohibited by the Certificate of Incorporation, these Bylaws, applicablelaw or contract.

 

 

 

6.6 STOCK TRANSFER AGREEMENTS

 

The Corporation shall have power to enterinto and perform any agreement with any number of stockholders of any one or more classes of stock of the Corporation to restrictthe transfer of shares of stock of the Corporation of any one or more classes owned by such stockholders in any manner not prohibitedby the DGCL.

 

6.7 REGISTERED STOCKHOLDERS

 

The Corporation:

 

(i) shall be entitled to recognize the exclusiveright of a person registered on its books as the owner of shares to receive dividends and to vote as such owner;

 

(ii) shall be entitled (to the fullest extentpermitted by law) to hold liable for calls and assessments the person registered on its books as the owner of shares; and

 

(iii) shall not be bound to recognize anyequitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall have expressor other notice thereof, except as otherwise provided by the laws of Delaware.

 

ARTICLEVII — MANNER OF GIVING NOTICE AND WAIVER

 

7.1 NOTICE OF STOCKHOLDERS’ MEETINGS

 

Notice of any meeting of stockholders, ifmailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’saddress as it appears on the Corporation’s records. An affidavit of the secretary or an assistant secretary of the Corporationor of the transfer agent or other agent of the Corporation that the notice has been given shall, in the absence of fraud, be primafacie evidence of the facts stated therein.

 

7.2 NOTICE BY ELECTRONIC TRANSMISSION

 

Without limiting the manner by which noticeotherwise may be given effectively to stockholders pursuant to the DGCL, the Certificate of Incorporation or these Bylaws, anynotice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation or these Bylawsshall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Anysuch consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revokedif:

 

 

 

(i) the Corporation is unable to deliver byelectronic transmission two consecutive notices given by the Corporation in accordance with such consent; and

 

(ii) such inability becomes known to the secretaryor an assistant secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice.

 

However, the inadvertent failure to treat such inability asa revocation shall not invalidate any meeting or other action.

 

Any notice given pursuant to the precedingparagraph shall be deemed given:

 

(i) if by facsimile telecommunication, whendirected to a number at which the stockholder has consented to receive notice;

 

(ii) if by electronic mail, when directedto an electronic mail address at which the stockholder has consented to receive notice;

 

(iii) if by a posting on an electronic networktogether with separate notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the givingof such separate notice; and

 

(iv) if by any other form of electronic transmission,when directed to the stockholder.

 

An affidavit of the secretary or an assistantsecretary or of the transfer agent or other agent of the Corporation that the notice has been given by a form of electronic transmissionshall, in the absence of fraud, be prima facie evidence of the facts stated therein.

 

An “**electronic transmission**”means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained,retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through anautomated process.

 

7.3 NOTICE TO STOCKHOLDERS SHARING AN ADDRESS

 

Except as otherwise prohibited under theDGCL, without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholdersgiven by the Corporation under the provisions of the DGCL, the Certificate of Incorporation or these Bylaws shall be effectiveif given by a single written notice to stockholders who share an address if consented to by the stockholders at that address towhom such notice is given. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any stockholderwho fails to object in writing to the Corporation, within 60 days of having been given written notice by the Corporation of itsintention to send the single notice, shall be deemed to have consented to receiving such single written notice.

 

7.4 NOTICE TO PERSON WITH WHOM COMMUNICATIONIS UNLAWFUL

 

Whenever notice is required to be given,under the DGCL, the Certificate of Incorporation or these Bylaws, to any person with whom communication is unlawful, the givingof such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agencyfor a license or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice toany such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given.In the event that the action taken by the Corporation is such as to require the filing of a certificate under the DGCL, the certificateshall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice exceptsuch persons with whom communication is unlawful.

 

 

 

7.5 WAIVER OF NOTICE

 

Whenever notice is required to be givento stockholders, directors or other persons under any provision of the DGCL, the Certificate of Incorporation or these Bylaws,a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice,whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to notice. Attendanceof a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for theexpress purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfullycalled or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholdersor the Board of Directors, as the case may be, need be specified in any written waiver of notice or any waiver by electronic transmissionunless so required by the Certificate of Incorporation or these Bylaws.

 

ARTICLEVIII — INDEMNIFICATION

 

8.1 INDEMNIFICATION OF DIRECTORS AND OFFICERSIN THIRD PARTY PROCEEDINGS

 

Subject to the other provisions of thisArticle VIII, the Corporation shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect,any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding,whether civil, criminal, administrative or investigative (a “**Proceeding**”) (other than an action by or in theright of the Corporation) by reason of the fact that such person is or was a director of the Corporation or an officer of the Corporation,or while a director of the Corporation or officer of the Corporation is or was serving at the request of the Corporation as a director,officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise, against expenses (includingattorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connectionwith such Proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposedto the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believesuch person’s conduct was unlawful. The termination of any Proceeding by judgment, order, settlement, conviction, or upona plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faithand in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, and, withrespect to any criminal action or proceeding, had reasonable cause to believe that such person’s conduct was unlawful.

 

 

 

8.2 INDEMNIFICATION OF DIRECTORS AND OFFICERSIN ACTIONS BY OR IN THE RIGHT OF THE CORPORATION

 

Subject to the other provisions of thisArticle VIII, the Corporation shall indemnify, to the fullest extent permitted by the DGCL, as now or hereinafter in effect,any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit byor in the right of the Corporation to procure a judgment in its favor by reason of the fact that such person is or was a directoror officer of the Corporation, or while a director or officer of the Corporation is or was serving at the request of the Corporationas a director, officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise againstexpenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlementof such action or suit if such person acted in good faith and in a manner such person reasonably believed to be in or not opposedto the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matteras to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court ofChancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudicationof liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for suchexpenses which the Court of Chancery or such other court shall deem proper.

 

8.3 SUCCESSFUL DEFENSE

 

To the extent that a present or former directoror officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding describedin Section 8.1 or Section 8.2, or in defense of any claim, issue or matter therein, such person shall be indemnified againstexpenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

 

8.4 INDEMNIFICATION OF OTHERS; ADVANCE PAYMENTTO OTHERS

 

Subject to the other provisions of thisArticle VIII, the Corporation shall have power to advance expenses to and indemnify its employees and its agents to theextent not prohibited by the DGCL or other applicable law. The Board of Directors shall have the power to delegate the determinationof whether employees or agents shall be indemnified or receive an advancement of expenses to such person or persons as the Boardof Directors determines.

 

8.5 ADVANCE PAYMENT OF EXPENSES

 

Expenses (including attorneys’ fees)incurred by an officer or director of the Corporation in defending any Proceeding shall be paid by the Corporation in advance ofthe final disposition of such Proceeding upon receipt of a written request therefor (together with documentation reasonably evidencingsuch expenses) and an undertaking by or on behalf of the person to repay such amounts if it shall ultimately be determined thatthe person is not entitled to be indemnified under this Article VIII or the DGCL. Such expenses (including attorneys’fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, ifany, as the Corporation deems reasonably appropriate and shall be subject to the Corporation’s expense guidelines. The rightto advancement of expenses shall not apply to any claim for which indemnity is excluded pursuant to these Bylaws, but shall applyto any Proceeding referenced in Section 8.6(ii) or 8.6(iii) of these Bylaws prior to a determination that the person isnot entitled to be indemnified by the Corporation.

 

 

 

8.6 LIMITATION ON INDEMNIFICATION

 

Subject to the requirements in Section8.3 and the DGCL, the Corporation shall not be obligated to indemnify any person pursuant to this Article VIII in connectionwith any Proceeding (or any part of any Proceeding):

 

(i) for which payment has actually been madeto or on behalf of such person under any statute, insurance policy, indemnity provision, vote or otherwise, except with respectto any excess beyond the amount paid;

 

(ii) for an accounting or disgorgement ofprofits pursuant to Section 16(b) of the 1934 Act, or similar provisions of federal, state or local statutory law or common law,if such person is held liable therefor (including pursuant to any settlement arrangements);

 

(iii) for any reimbursement of the Corporationby such person of any bonus or other incentive-based or equity-based compensation or of any profits realized by such person fromthe sale of securities of the Corporation, as required in each case under the 1934 Act (including any such reimbursements thatarise from an accounting restatement of the Corporation pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “**Sarbanes-OxleyAct**”), or the payment to the Corporation of profits arising from the purchase and sale by such person of securities inviolation of Section 306 of the Sarbanes-Oxley Act), if such person is held liable therefor (including pursuant to any settlementarrangements);

 

(iv) initiated by such person against theCorporation or its directors, officers, employees, agents or other indemnitees, unless (a) the Board of Directors authorized theProceeding (or the relevant part of the Proceeding) prior to its initiation, (b) the Corporation provides the indemnification,in its sole discretion, pursuant to the powers vested in the Corporation under applicable law, (c) otherwise required to be madeunder Section 8.7 of these Bylaws or (d) otherwise required by applicable law; or

 

(v) if prohibited by applicable law; *provided*,*however*, that if any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceablefor any reason whatsoever: (1) the validity, legality and enforceability of the remaining provisions of this Article VIII(including, without limitation, each portion of any paragraph or clause containing any such provision held to be invalid, illegalor unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impairedthereby; and (2) to the fullest extent possible, the provisions of this Article VIII (including, without limitation, eachsuch portion of any paragraph or clause containing any such provision held to be invalid, illegal or unenforceable) shall be construedso as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.

 

8.7 DETERMINATION; CLAIM

 

If a claim for indemnification or advancementof expenses under this Article VIII is not paid in full within 90 days after receipt by the Corporation of the written requesttherefor, the claimant shall be entitled to an adjudication by a court of competent jurisdiction of his or her entitlement to suchindemnification or advancement of expenses. The Corporation shall indemnify such person against any and all expenses that are incurredby such person in connection with any action for indemnification or advancement of expenses from the Corporation under this ArticleVIII, to the extent such person is successful in such action, and to the extent not prohibited by law. In any such suit, theCorporation shall, to the fullest extent not prohibited by law, have the burden of proving that the claimant is not entitled tothe requested indemnification or advancement of expenses.

 

 

 

8.8 NON-EXCLUSIVITY OF RIGHTS

 

The indemnification and advancement of expensesprovided by, or granted pursuant to, this Article VIII shall not be deemed exclusive of any other rights to which thoseseeking indemnification or advancement of expenses may be entitled under the Certificate of Incorporation or any statute, bylaw,agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacityand as to action in another capacity while holding such office. The Corporation is specifically authorized to enter into individualcontracts with any or all of its directors, officers, employees or agents respecting indemnification and advancement of expenses,to the fullest extent not prohibited by the DGCL or other applicable law.

 

8.9 INSURANCE

 

The Corporation may purchase and maintaininsurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was servingat the request of the Corporation as a director, officer, employee or agent of another Corporation, partnership, joint venture,trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity,or arising out of such person’s status as such, whether or not the Corporation would have the power to indemnify such personagainst such liability under the provisions of the DGCL.

 

8.10 SURVIVAL

 

The rights to indemnification and advancementof expenses conferred by this Article VIII shall continue as to a person who has ceased to be a director, officer, employeeor agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

8.11 EFFECT OF REPEAL OR MODIFICATION

 

Any amendment, alteration or repeal of thisArticle VIII shall not adversely affect any right or protection hereunder of any person in respect of any act or omissionoccurring prior to such amendment, alteration or repeal.

 

8.12 CERTAIN DEFINITIONS

 

For purposes of this Article VIII,references to the “**Corporation**” shall include, in addition to the resulting corporation, any constituent corporation(including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued,would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or wasa director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituentcorporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporationas such person would have with respect to such constituent corporation if its separate existence had continued. For purposes ofthis Article VIII, references to “**other enterprises**” shall include employee benefit plans; referencesto “**fines**” shall include any excise taxes assessed on a person with respect to an employee benefit plan (excludingany “parachute payments” within the meanings of Sections 280G and 4999 of the Internal Revenue Code of 1986, as amended);and references to “**serving at the request of the Corporation**” shall include any service as a director, officer,employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agentwith respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a mannersuch person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall bedeemed to have acted in a manner “**not opposed to the best interests of the Corporation**” as referred to in thisArticle VIII.

 

 

 

ARTICLEIX — GENERAL MATTERS

 

9.1 EXECUTION OF CORPORATE CONTRACTS ANDINSTRUMENTS

 

Except as otherwise provided by law, theCertificate of Incorporation or these Bylaws, the Board of Directors may authorize any officer or officers, or agent or agents,to enter into any contract or execute any document or instrument in the name of and on behalf of the Corporation; such authoritymay be general or confined to specific instances. Unless so authorized or ratified by the Board of Directors or within the agencypower of an officer, no officer, agent or employee shall have any power or authority to bind the Corporation by any contract orengagement or to pledge its credit or to render it liable for any purpose or for any amount.

 

9.2 FISCAL YEAR

 

The fiscal year of the Corporation shallbe fixed by resolution of the Board of Directors and may be changed by the Board of Directors.

 

9.3 SEAL

 

The Corporation may adopt a corporate seal,which shall be adopted and which may be altered by the Board of Directors. The Corporation may use the corporate seal by causingit or a facsimile thereof to be impressed or affixed or in any other manner reproduced.

 

9.4 CONSTRUCTION; DEFINITIONS

 

Unless the context requires otherwise, thegeneral provisions, rules of construction, and definitions in the DGCL shall govern the construction of these Bylaws. Without limitingthe generality of this provision, the singular number includes the plural, the plural number includes the singular, and the term“**person**” includes both an entity and a natural person.

 

ARTICLEX — AMENDMENTS

 

These Bylawsmay be adopted, amended or repealed by the stockholders entitled to vote; *provided*, *however*, that the affirmativevote of the holders of at least a majority of the total voting power of all outstanding shares of capital stock of the Corporationentitled to vote thereon, voting together as a single class, shall be required for the stockholders of the Corporation to alter,amend or repeal, or adopt any bylaw inconsistent with, the following provisions of these Bylaws: Article II, Sections 3.1, 3.2,3.4 and 3.11 of Article III, Article VIII and this Article X (including, without limitation, any such Articleor Section as renumbered as a result of any amendment, alteration, change, repeal, or adoption of any other Bylaw). The Board ofDirectors, acting by the affirmative vote of at least a majority of the Whole Board, shall also have the power to adopt, amendor repeal Bylaws; *provided*, *however*, that a bylaw amendment adopted by stockholders which specifies the votes thatshall be necessary for the election of directors shall not be further amended or repealed by the Board of Directors.