展覽3.1
修訂及重訂章程
挖掘作業的回顧
DEXCOm公司。
(一間特拉華州公司)
根據2024年10月22日修訂
目 錄
| 頁面 | ||||||||
第一條 股東 | 4 | |||||||
| 1.1章節。 | 年度股東大會 | 4 | ||||||
| 1.2 節。 | 会议地点; 远程会议 | 4 | ||||||
| 第1.3節。 | 會議通知。應於會議召開之日不少於十（10）天，不多於六十（60）天之前，由總裁、秘書或召集會議的官員或人士，本著猶他州修正商業公司法或公司組織章程所授的權利，個別地或通過郵寄方式，向每位記名有權投票出席該會議的股東，或任何其他有權根據猶他州修正商業公司法或公司組織章程接收會議通知的股東發出書面或印刷的通知。通知應在以下兩者中的早者被視為有效：（1）投遞到美國郵寄，寄往股東在股票轉倉簿上所顯示的地址。 | 4 | ||||||
| 1.4節。 | Adjournments | 4 | ||||||
| 1.5節。 | 法定人数 | 4 | ||||||
| 1.6節。 | 組織 | 5 | ||||||
| 1.7節。 | 投票 | 5 | ||||||
| 第1.8節。 | 代理人 | 5 | ||||||
| 第1.9節。 | 確定股東資格登記日期的確定日期 | 5 | ||||||
| 第1.10節。 | 有投票權的股東名冊 | 5 | ||||||
| 第1.11節。 | 選舉主任審核員 | 5 | ||||||
| 第1.12節。 | 股東業務通知；提名 | 5 | ||||||
| 第1.13節。 | 包含在公司代理材料中的股東提名 | 8 | ||||||
第II章 董事會 | 14 | |||||||
| 第2.1節。 | 數量；資格 | 14 | ||||||
| 第2.2節。 | 選舉；辭職；罷免；空缺 | 14 | ||||||
| 2.3節。 | 定期會議 | 14 | ||||||
| 第2.4節。 | 会议地点; 远程会议 | 14 | ||||||
| 第2.5節。 | 允許遠程會議 | 14 | ||||||
| 第2.6節。 | 法定人數；行動所需的投票 | 14 | ||||||
| 第2.7節。 | 組織 | 14 | ||||||
| 第2.8節。 | 董事書面行動 | 15 | ||||||
| 第2.9節。 | 權力 | 15 | ||||||
| 第2.10節。 | 董事薪酬 | 15 | ||||||
第三篇 委員會 | 15 | |||||||
| 第3.1節。 | 委員會 | 15 | ||||||
| 第3.2節。 | 委員會規則 | 15 | ||||||
第四篇 主管 | 15 | |||||||
| 第4.1節。 | 通常 | 15 | ||||||
| 第4.2節。 | 首席執行官 | 15 | ||||||
| 第4.3節。 | 董事會主席。 | 16 | ||||||
| 第4.4節。 | 首席獨立董事 | 16 | ||||||
| 第4.5節。 | 總統 | 16 | ||||||
| 第4.6節。 | 副總裁。 | 16 | ||||||
| 第4.7節。 | 致富金融(臨時代碼) | 16 | ||||||
| 第4.8節。 | 財務主管 | 16 | ||||||
| 第4.9節。 | 秘書 | 16 | ||||||
| 第4.10節。 | 權限的委派 | 16 | ||||||
| 第4.11節。 | 罷免 | 16 | ||||||
第五條 股票 | 17 | |||||||
| 第5.1節。 | 證書 | 17 | ||||||
| 第5.2節。 | 遺失、被盜或毀損股票證書；頒發新證書 | 17 | ||||||
| 第5.3節。 | 其他規定 | 17 | ||||||
第六條 賠償 | 17 | |||||||
| 第6.1節。 | 董事與總經理之賠償 | 17 | ||||||
| 第6.2節。 | 費用預支 | 17 | ||||||
| 第6.3節。 | 權利的非独占性 | 18 | ||||||
| 第6.4節。 | 賠償合同 | 18 | ||||||
| 第6.5節。 | 修正條款的影響 | 18 | ||||||
第七條 通知 | 18 | |||||||
| 第7.1節。 | 通知 | 18 | ||||||
第7.2節。 | 豁免通知 | 18 | ||||||
第八條 有利益董事 | 19 | |||||||
| 第8.1節。 | 有利益董事; 法定人數 | 19 | ||||||
第九條 雜項 | 19 | |||||||
| 第9.1節。 | 財政年度 | 19 | ||||||
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| 第9.2節。 | 海豹 | 19 | ||||||
| 第9.3節。 | 記錄形式 | 19 | ||||||
| 第9.4節。 | 依賴於書籍和記錄 | 19 | ||||||
| 第9.5節。 | 公司章程管轄 | 19 | ||||||
| 第9.6節。 | 可分割性 | 19 | ||||||
第十條修正 | 19 | |||||||
| 第10.1節。 | 修訂事項 | 19 | ||||||
第十一條專屬論壇 | 20 | |||||||
| 第11.1節。 | 特拉華論壇 | 20 | ||||||
| 第11.2節。 | 專屬聯邦論壇 | 20 | ||||||
3
修訂及重訂章程
挖掘作業的回顧
DEXCOm公司。
(一間特拉華州公司)
第一篇
股東
1.1章節。年度會議。 股東年會應於每年董事會確定的日期和時間選舉董事。會議可以在特定地點舉行，無論位於特拉華州內還是外，或由董事會全權判斷採取遠距通訊方式進行。任何在會議上妥善提出的業務均可在年度會議上辦理。
1.2 節。特別會議。 董事會可以隨時召集股東特別會議，必須在董事會主席、首席執行官、總裁、首席獨立董事或董事會大部分成員的要求下召開。特別會議不得由其他人召集。會議可以在特訂地點舉行，包括但不限於特拉華州內或外，或由董事會據其權餘判斷而採用遠程通訊方式進行。
第一節 1.3.會議通知。 所有股東會議的通知須以法律規定的方式以書面或電子方式發出（包括但不限於以下所規定的） 第 7.1 (b) 節 本章程)，說明會議的日期、時間和地點（包括經修訂的特拉華州通用公司法規定的遠端通訊手段（」DGCL」），如有，股東和代理持有人可被視為親身出席並投票），以及如有特別大會，召開會議的目的或目的。除非適用法律或本公司的註冊證明另有規定外，否則該通知須在會議日期前不少於十 (10) 天或超過六十 (60) 天向每位在該等會議上有權投票的記錄股東發出。
1.4節。中止；延期；取消。 任何股東會議的主席有權將該會議延期至另一時間、日期和地點（如有）。如果不是因為遙距溝通的技術失敗而延期或繼續會議，則無需通知任何已延期的會議，只要在採取延期之時在會議上宣佈該會議的時間、日期和地點（以及遙距溝通的方式適用範圍）或者在虛擬會議使用的電子網路上計劃會議時間期間顯示，或者在會議通知中設定； 提供, 但是若延期超過三十（30）天，或者在延期後為延期會議設立新記錄日期，則應向有權在會議上投票的每位記錄股東發出延期會議通知。在延期會議上，公司可以處理原會議可處理的任何業務。董事會可以在任何已寄發會議通知給股東之前或之後的任何時間推遲或取消任何先前安排的特別或年度股東大會，並且公司應當公開宣佈此類推遲或取消，包括會議的新日期、時間和地點。 第一節 1.3.
1.5節。出席會議的董事主導多數，為達業務交易的法定人數。若在董事會會議上出席董事少於法定人數，出席人數佔多數的人可隨時將會議延期，直至達到法定人數，此時不需要再另行發布任何通知，除非是在已經延期的會議上發表的公告。 在每次股東會議上，持有已發行和流通股份大多數，有投票權參加會議的股東（無論親自出席或代理人代表）將構成業務交易的法定人數，除非適用法律另有規定。當就某事項需要按某類別或類別或系列進行獨立表決時，該類別或類別或系列的已發行和流通股份大多數，有投票權參加會議的股東（無論親自出席或代理人代表）將構成有權對該事項進行表決的法定人數。如果法定人數未能參加任何會議，則會議主席可以休會。公司股份屬於公司（或屬於另一家公司，如果該其他公司的董事選舉中的大多數股份是由公司直接或間接擁有）的股份既不享有投票權，也不計入法定人數； 提供, 但是上述規定並不限制公司或任何其他公司以受託人身份投票任何由其持有的公司股份，並將這些股份計入決定法定人數的目的。
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1.6節。組織。 股東會議應由董事會主席或董事會主席指定的人主持，或在無該人員時，由首席執行官或首席執行官指定的人主持，或在無該人員時，由出席會議的佔表決權多數股份的股東所選的人主持，該人應主持會議，根據 第1.12節 此，應判斷會議的業務順序和程序，包括對投票方式和討論方式的規定，以保持秩序。公司秘書（“秘書”）應擔任會議秘書，但如果該人員不在場，則會議主席可以任命任何人擔任會議秘書。
第 1.7 節投票。 除非適用法律、公司註冊證書或本章程另有規定，否則除董事選舉以外的所有事項均應由親自出席會議或由代理人代表出席會議並投贊成或反對票的大多數已發行和流通股票的持有人投贊成票決定； 提供的 即，如果某一事項需要一個或多個類別或系列進行單獨表決，則該事項應由親自出席會議或由代理人代表出席會議並投贊成或反對票的該類別或系列中有權就該事項進行表決的已發行和流通股票的大多數持有人投贊成票決定。除非適用法律或公司註冊證書另有規定，並受以下條款的約束 第 1.9 節 在這些章程中，每位股東都有權對該股東持有的每股股票進行一（1）次投票。就本章程而言，棄權票或股東未給予任何權力或自由裁量權的股票，包括經紀人的不投票，均不算作贊成或反對任何事項的投票，但爲了確定法定人數，將考慮棄權和經紀人的不投票 第 1.5 節.
第1.8節。委託投票。 每個股東有權在股東大會上授權另一人或多人代表其行事，但除非代理指定了較長的期限，否則在其日期後的三（3）年不得表決或執行任何該代理。此類代理可以以適用法律允許的任何方式制定、傳遞和送達。除非代理聲明爲不可撤銷且適用法律使其不可撤銷，否則每個代理均可由執行該代理的股東酌情撤銷。股東可以通過出席會議並親自投票或向秘書遞交代表全權的吊銷表或日期較晚的新代理以自會議議程規定的時間前交付此類代理來撤銷任何非不可撤銷的代理。
第1.9節。確定股東記錄日期。 爲了使公司能夠確定股東有權收到或參加股東大會或任何股東大會的延期會議的通知，或有權接收任何股息或其他分配或權利分配，或有權行使有關任何股票變更、轉換或交換的權利，或爲任何其他合法行動的目的，董事會可以預先確定記錄日期，該日期不得早於董事會通過決議確定記錄日期的日期，也不得早於該會議日期之前60（60）天，也不得少於10（10）天，也不得超過60（60）天。如果董事會沒有確定記錄日期，則記錄日期應按適用法律規定。對於有權收到或參加股東大會通知的股東記錄的判斷應適用於該會議的任何延期； 在每種情況下，該B類股東和/或該B類股東的家庭成員需獨立控制在此類帳戶、計劃或信託中持有的B類普通股實時；, 公司對於以下情況，不應承擔責任：根據第10（b）部分書面信息可靠地提供。董事會可以爲延期的會議確定一個新的記錄日期。
第1.10節。有權投票的股東名單。 股東名單完整，按字母順序排列，顯示每位股東的地址和每位股東名下注冊的股份數量，應對任何與會議相關的目的開放給任何股東查閱，至少在會議日期前的十(10)天截止，可通過合法允許的電子網絡(前提是提供會議通知中所需的訪問名單信息)或在公司的主要營業地點的正常工作時間內查閱。
Section 1.11.Inspectors of Elections. The Corporation shall, 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. The Corporation may designate one or more persons to act as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector of election, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability.
Section 1.12.Notice of Stockholder Business; Nominations.
(a)Annual Meeting of Stockholders.
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(i)Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders shall be made at an annual meeting of stockholders (A) pursuant to the Corporation’s notice of such meeting, (B) by or at the direction of the Board of Directors or (C) by any stockholder of the Corporation who was a stockholder of record at the time of giving of the Solicitation Notice, as that term is defined below, provided for in this Section 1.12, who is entitled to vote at such meeting and who complies with the procedures set forth in this Section 1.12.
(ii)根據以下規定，股東應將提名或業務提案妥善提交年會 第 1.12 (a) (i) (C) 節，此類業務必須是股東採取行動的適當事項，股東或代表其提出任何此類提名或提案的受益所有人必須向公司首席法務官提供一份通知，說明（此類通知），招標通知”）：（A）關於股東提議提名當選或連任董事的每位人員（1）根據經修訂的1934年《證券交易法》第14A條，在邀請代理人選舉董事時要求披露或以其他方式要求披露的與該人有關的所有信息（”《交易法》”），包括該人書面同意在適用會議的任何委託書中被提名爲被提名人，如果當選則擔任董事；(2) 填寫並簽署了公司董事要求的問卷（問卷應由公司應股東的要求提供）；(3) 聲明該人如果當選是否打算在該人當選或連任後立即投標不可撤銷的問卷如果該人未能獲得連任所需的選票, 則該辭職即生效根據公司董事會公司治理原則，在下次會議上選舉該人將面臨連任的連任以及董事會接受此類辭職；以及 (4) 一份陳述，表明該人如果當選，將遵守並遵守適用的法律和所有適用的公司治理、行爲準則和商業道德、利益衝突、公司機會、保密和股票所有權以及交易政策與準則公司；(B)) 至於股東提議向會議提交的任何其他業務，簡要說明希望在會議上開展此類業務的原因，以及該股東和代表其提出提案的受益所有人（如果有）在該業務中的任何重大利益；(C) 關於發出招標通知的股東和受益所有人（如果有）所代表的提名或提案的受益所有人（如果有）是（1）該股東的姓名和地址，如上所示公司賬簿和該受益所有人的賬簿，(2) 該股東和該受益所有人實益擁有並記錄在案的公司股份的類別和數量，以及該股東將在記錄的公司實益擁有和記錄在案的股份類別和數量的會議之日起五 (5) 個工作日內以書面形式通知公司首席法務官的陳述和協議截至該記錄日的股東和該受益所有人，(3) a描述該股東與該股東與該受益所有人、其各自的任何關聯公司或關聯公司以及與上述任何內容一致行動的任何其他人之間或彼此之間的提名或提案（無論是否爲書面形式），包括但不限於根據《交易法》附表13D第5項或第6項要求披露的任何協議、安排或諒解（無論是否需要附表13D），以及該股東將作出的陳述和協議在會議記錄日期後的五 (5) 個工作日內以書面形式將截至會議記錄日期簽訂或生效的任何此類協議、安排或諒解通知公司首席法務官，(4) 描述任何協議、安排或諒解（無論是否爲書面形式）（包括但不限於任何衍生或空頭頭寸、利息、期權、認股權證、股票增值或類似權利），對沖交易，以及已借入或借出的股票）自該股東或該受益所有人簽訂或代表該股東發出招標通知之日起生效，其效果或意圖是減輕損失、降低（所有權或其他方面）的經濟風險、管理股價變動的風險或收益，或增加或減少該股東或該受益所有人對公司股票的投票權，以及該股東將在以下時間通知公司首席法務官的陳述和協議在會議記錄日期後的五 (5) 個工作日內書寫截至會議記錄日期已簽訂或生效的任何此類協議、安排或諒解，(5) 描述該股東或該受益所有人與任何其他人之間或彼此之間與收購、持有、投票或處置任何股份有關的任何其他協議、安排或諒解（無論是否爲書面形式），包括該股的數量受此類協議、安排或諒解的約束，以及陳述並同意該股東將在會議記錄日期後的五 (5) 個工作日內以書面形式將本條款 (C) (5) 所述類型的協議、安排或諒解通知公司首席法務官；(6) 陳述該股東是有權在該會議上投票的公司股票記錄持有人並打算親自或委託人出席提出此類提名的會議或提案，以及 (7) 一份陳述，說明該股東或該受益所有人將向持有人提交委託書和委託書，其持有人至少達到適用法律要求的公司有表決權股份的百分比，或者，如果是提名或
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nominations, deliver a proxy statement and form of proxy to holders of outstanding shares of capital stock of the Corporation representing at least 67% of the voting power of shares of capital stock entitled to vote on the election of directors. The information required under clause (C)(7) of this Section 1.12(a)(ii) shall be supplemented by such stockholder or such beneficial owner and delivered to the Chief Legal Officer of the Corporation at the principal executive offices of the Corporation not less than five (5) business days prior to the meeting or any adjournment or postponement thereof, with reasonable documentary evidence (as determined by the Chief Legal Officer of the Corporation in good faith) that such stockholder and/or such beneficial owner complied with such representation under clause (C)(7) of this Section 1.12(a)(ii). Additionally, such stockholder or such beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s voting shares required under applicable law to carry such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of outstanding shares of capital stock of the Corporation representing at least 67% of the voting power of shares of capital stock entitled to vote on the election of directors. If a stockholder who submits a Solicitation Notice pursuant to this Section 1.12 no longer intends to solicit proxies in accordance with its representations contained in its Solicitation Notice, such stockholder shall inform the Corporation of this change by delivering notice thereof in writing to the Chief Legal Officer of the Corporation at the principal executive offices of the Corporation not later than two (2) business days after the occurrence of such change and such nomination or proposal shall be disregarded, notwithstanding that proxies in respect of such nomination or proposal may have been received by the Corporation.
(iii)To be timely, a Solicitation Notice must be delivered to the Chief Legal Officer of the Corporation at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred and twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, a Solicitation Notice by the stockholder to be timely must be so delivered not earlier than the close of business on the one hundred and twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation.
(iv)Notwithstanding anything in Section 1.12(a)(iii) to the contrary, in the event that the number of directors to be elected to the Board of Directors is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least ninety (90) days prior to the first anniversary of the preceding year’s annual meeting (or, if the annual meeting is held more than thirty (30) days before or sixty (60) days after such anniversary date, at least ninety (90) days prior to such annual meeting), a Solicitation Notice required by this Section 1.12 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Chief Legal Officer of the Corporation at the principal executive office of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.
(b)Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of such meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of such meeting (i) by or at the direction of the Board of Directors or (ii) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice of the special meeting, who shall be entitled to vote at the meeting and who complies with the procedures set forth in this Section 1.12 for an annual meeting; provided that, in the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if the Solicitation Notice required by Section 1.12(a)(ii) shall be delivered to the Chief Legal Officer of the Corporation at the principal executive offices of the Corporation not earlier than the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting.
(c)General.
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(i)Only such persons who are nominated in accordance with the procedures set forth in this Section 1.12 shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 1.12. Except as otherwise provided by law or these Bylaws, the chairperson of the meeting shall have the power and duty to determine whether a nomination or any proposal for business to be brought before the meeting was made in accordance with the procedures set forth in this Section 1.12 and, if any nomination or proposal is not in compliance herewith, to declare that no vote shall be taken with respect to such defective nomination or proposal, in each case notwithstanding that proxies with respect to such nomination or proposal may have been received by the Corporation; provided, however, in the event the Corporation receives proxies for disqualified or withdrawn nominees for the Board of Directors, any votes for such disqualified or withdrawn nominees in the proxies will be treated as abstentions.
(ii)爲了本 第1.12節術語“第2.9節。除了法律或公司章程中規定股東必須開會的活動外，在任何年度股東大會或特別股東大會上需要進行的任何活動或任何可能在此類股東大會上開展的活動，均可在不召開會議、不提前通知且不需要表決的情況下進行，前提是一項寫有執行活動的行動的同意書應由擁有不少於股票最少需要的最低票數的股票的股東簽名，並通過遞交給該公司。遞交給公司的交付點應爲德拉華州的註冊辦公室，其主要營業場所或記錄股東會議程序記錄的在職或代理人員。遞交給公司註冊辦公室的送達方式應爲交手、認證或註冊郵件，並要求回執。「資訊」指道瓊斯新聞社、美聯社或類似國家級新聞服務報告的新聞發佈或公司公開向證券交易委員會提交的文件中披露的信息（“SEC”）根據《交換法》第13條、第14條或第15(d)條的規定。
(iii)儘管本協議的前述規定 第1.12節，股東還必須遵守交易所法案以及相關規定，就本協議中涉及的事項進行遵從。本協議中的任何內容 第1.12節 不得影響股東根據交易所法案第14a-8條規定要求在公司的代理聲明中包括提案的任何權利。
(iv)股東提供董事提名通知書或者如果有的話，代表其提名的受益所有人所提名的被提名人數，不得超過將在年度股東大會上選舉的董事人數。
(v)在任何股東利用自己的代理卡直接或間接地與其他股東拉票時，該代理卡必須使用非白色，白色應由董事會獨家使用。
第1.13節。股東提名已納入公司的代理材料中
(a)Inclusion of Nominees in Proxy Statement. Subject to the provisions of this Section 1.13, if expressly requested in the relevant Nomination Notice (as defined below), the Corporation shall include in its proxy statement for any annual meeting of stockholders:
(i)the names of any person or persons nominated for election (each, a “Nominee”), which shall also be included on the Corporation’s form of proxy and ballot, by any Eligible Holder (as defined below) or group of up to twenty (20) Eligible Holders that has (individually and collectively, in the case of a group) satisfied, as determined by the Board of Directors, all applicable conditions and complied with all applicable procedures set forth in this Section 1.13 (such Eligible Holder or group of Eligible Holders being a “Nominating Stockholder”);
(ii)disclosure about each Nominee and the Nominating Stockholder required under the rules of the SEC or other applicable law to be included in the proxy statement;
(iii)any statement included by the Nominating Stockholder in the Nomination Notice for inclusion in the proxy statement in support of each Nominee’s election to the Board (subject, without limitation, to Section 1.13(e)(ii)), if such statement does not exceed 500 words and fully complies with Section 14 of the Exchange Act and the rules and regulations thereunder, including Rule 14a-9 (the “Supporting Statement”); and
(iv)any other information that the Corporation or the Board of Directors determines, in their discretion, to include in the proxy statement relating to the nomination of each Nominee, including, without limitation, any statement in opposition to the nomination, any of the information provided pursuant to this Section 1.13 and any solicitation materials or related information with respect to a Nominee.
(v)For purposes of this Section 1.13, any determination to be made by the Board of Directors may be made by the Board of Directors, a committee of the Board of Directors or any officer of the Corporation designated by the Board of Directors or a committee of the Board of Directors, and any such determination shall be final and binding on the Corporation, any Eligible Holder, any Nominating Stockholder, any Nominee and any other person, so long as such determination is made in good faith (without any further requirements). The chairperson of any annual meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall have the power and duty to determine whether a Nominee has been nominated in accordance with the requirements of this Section 1.13 and, if not so nominated, shall direct and declare at the meeting that such Nominee shall not be considered.
(b)Maximum Number of Nominees.
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(i)The Corporation shall not be required to include in the proxy statement for an annual meeting of stockholders more Nominees than that number of directors constituting the greater of (A) two (2) or (B) twenty percent (20%) of the total number of directors of the Corporation on the last day on which a Nomination Notice may be submitted pursuant to this Section 1.13 (rounded down to the nearest whole number) (the “Maximum Number”). The Maximum Number for a particular annual meeting shall be reduced by: (1) Nominees who the Board itself decides to nominate for election at such annual meeting; (2) Nominees who have been accepted for nomination and subsequently cease to satisfy, or Nominees of Nominating Stockholders that have been accepted for nomination and subsequently cease to satisfy, the eligibility requirements in this Section 1.13, as determined by the Board; (3) Nominees whose nomination is withdrawn by the Nominating Stockholder or who become unwilling to serve on the Board; and (4) the number of incumbent directors who had been Nominees with respect to any of the preceding two (2) annual meetings of stockholders and whose reelection at the upcoming annual meeting is being recommended by the Board. In addition to any reductions in the Maximum Number for a particular annual meeting pursuant to the preceding sentence, the Maximum Number shall be reduced (but not below one (1)) by the number of director candidates for whom the Chief Legal Officer of the Corporation shall have received a notice pursuant to Section 1.12 of these Bylaws that a stockholder intends to nominate a candidate for director at such annual meeting (whether or not such notice is subsequently withdrawn or made the subject of a settlement with the Corporation). In the event that one or more vacancies for any reason occurs on the Board after the deadline for submitting a Nomination Notice as set forth in Section 1.13(d) below but before the date of the annual meeting, and the Board resolves to reduce the size of the board in connection therewith, the Maximum Number shall be calculated based on the number of directors in office as so reduced.
(ii)If the number of Nominees pursuant to this Section 1.13 for any annual meeting of stockholders exceeds the Maximum Number then, promptly upon notice from the Corporation, each Nominating Stockholder will select one Nominee for inclusion in the proxy statement until the Maximum Number is reached, going in order of the amount (largest to smallest) of the ownership position as disclosed in each Nominating Stockholder’s Nomination Notice, with the process repeated if the Maximum Number is not reached after each Nominating Stockholder has selected one Nominee. If, after the deadline for submitting a Nomination Notice as set forth in Section 1.13(d), a Nominating Stockholder or a Nominee ceases to satisfy the eligibility requirements in this Section 1.13, as determined by the Board, a Nominating Stockholder withdraws its nomination or a Nominee becomes unwilling to serve on the Board, whether before or after the mailing or other distribution of the definitive proxy statement, then the nomination shall be disregarded, and the Corporation: (1) shall not be required to include in its proxy statement or on any ballot or form of proxy the disregarded Nominee or any successor or replacement nominee proposed by the Nominating Stockholder or by any other Nominating Stockholder and (2) may otherwise communicate to its stockholders, including without limitation by amending or supplementing its proxy statement or ballot or form of proxy, that a Nominee will not be included as a nominee in the proxy statement or on any ballot or form of proxy and will not be voted on at the annual meeting.
(c)Eligibility of Nominating Stockholder.
(i)An “Eligible Holder” is a person who has either (1) been a record holder of the shares of common stock used to satisfy the eligibility requirements in this Section 1.13(c) continuously for the three (3) year period specified in Subsection (ii) below or (2) provides to the Chief Legal Officer of the Corporation, within the time period referred to in Section 1.13(d), evidence of continuous ownership of such shares for such three (3) year period from one or more securities intermediaries in a form that the Board determines would be deemed acceptable for purposes of a shareholder proposal under Rule 14a-8(b)(2) under the Exchange Act (or any successor rule).
(ii)An Eligible Holder or group of up to twenty (20) Eligible Holders may submit a nomination in accordance with this Section 1.13 only if the person or group (in the aggregate) has continuously owned at least the Minimum Number (as defined below) of shares of the Corporation’s common stock throughout the three (3) year period preceding and including the date of submission of the Nomination Notice, and continues to own at least the Minimum Number through the date of the annual meeting. Two or more funds that are (A) under common management and investment control, (B) under common management and funded primarily by a single employer, or (C) a “group of investment companies,” as such term is defined in Section 12(d)(1)(G)(ii) of the Investment Company Act of 1940, as amended, shall be treated as one Eligible Holder if such Eligible Holder shall provide together with the Nomination Notice documentation reasonably satisfactory to the Corporation that demonstrates that the funds meet the criteria set forth in (A), (B) or (C) hereof. For the avoidance of doubt, in the event of a nomination by a group of Eligible Holders, any and all requirements and obligations for an individual Eligible Holder that are set forth in this Section 1.13, including the minimum holding period, shall apply to each member of such group; provided, however, that the Minimum Number shall apply to the ownership of the group in the aggregate. Should any stockholder cease to satisfy the eligibility requirements in this Section 1.13, as determined by the Board, or withdraw from a group of Eligible Holders at any time prior to the annual meeting of stockholders, the group of Eligible Stockholders shall only be deemed to own the shares held by the remaining members of the group.
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(iii)The “Minimum Number” of shares of the Corporation’s common stock means three percent (3%) of the number of outstanding shares of common stock as of the most recent date for which such amount is given in any quarterly or annual filing, securities registration or other filing by the Corporation with the SEC prior to the submission of the Nomination Notice.
(iv)For purposes of this Section 1.13, an Eligible Holder “owns” only those outstanding shares of the Corporation as to which the Eligible Holder possesses both:
(A)the full voting and investment rights pertaining to the shares; and
(B)the full economic interest in (including the opportunity for profit and risk of loss on) such shares;
(v)provided that the number of shares calculated in accordance with Sections 1.13(c)(iv)(A) and 1.13(c)(iv)(B) shall not include any shares: (1) purchased or sold by such Eligible Holder or any of its affiliates in any transaction that has not been settled or closed, (2) loaned or sold short by such Eligible Holder, (3) borrowed by such Eligible Holder or any of its affiliates for any purpose or purchased by such Eligible Holder or any of its affiliates pursuant to an agreement to resell or subject to any other obligation to resell to another person, or (4) subject to any option, warrant, forward contract, swap, contract of sale, other derivative or similar agreement entered into by such Eligible Holder or any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount or value of outstanding shares of the Corporation, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of: (x) reducing in any manner, to any extent or at any time in the future, such Eligible Holder’s or any of its affiliates’ full right to vote or direct the voting of any such shares, and/or (y) hedging, offsetting, or altering to any degree, gain or loss arising from the full economic ownership of such shares by such Eligible Holder or any of its affiliates.
(vi)An Eligible Holder “owns” shares held in the name of a nominee or other intermediary so long as the Eligible Holder retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares. An Eligible Holder’s ownership of shares shall be deemed to continue during any period in which the Eligible Holder has delegated any voting power by means of a proxy, power of attorney, or other similar instrument or arrangement that is revocable at any time by the Eligible Holder. An Eligible Holder’s ownership of shares shall be deemed to continue during any period in which the Eligible Holder has loaned such shares provided that the Eligible Holder has the power to recall such loaned shares on five (5) business days’ notice, has recalled such loaned shares as of the date of the Nomination Notice and continues to hold such shares through the date of the annual meeting. The terms “owned,” “owning” and other variations of the word “own” shall have correlative meanings. Whether outstanding shares of the Corporation are “owned” for these purposes shall be determined by the Board.
(vii)No Eligible Holder shall be permitted to be in more than one group constituting a Nominating Stockholder, and if any Eligible Holder appears as a member of more than one group, it shall be deemed to be a member of the group that has the largest ownership position as reflected in the Nomination Notice.
(d)Nomination Notice. To nominate a Nominee, the Nominating Stockholder must, no earlier than 5:00 PM, Pacific Time on the one hundred and fiftieth (150th) day and no later than 5:00 PM, Pacific Time on the one hundred and twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting of stockholders, deliver to the Chief Legal Officer of the Corporation at the principal executive office of the Corporation all of the information and documents set forth in paragraphs (i)-(iv) below (collectively, the “Nomination Notice”); provided, however, that if (and only if) the date of the annual meeting of stockholders is more than thirty (30) days before or more than sixty (60) days after such anniversary date (an annual meeting date outside such period being referred to herein as an “Other Meeting Date”), notice by the Nominating Stockholder must be so delivered no earlier than 5:00 PM, Pacific Time on the one hundred and twentieth (120th) day prior to such annual meeting and no later than 5:00 PM, Pacific Time on the later of (A) the ninetieth (90th) day prior to such Other Meeting Date and (B) the tenth (10th) day following the day on which the Other Meeting Date is first announced or disclosed by the Corporation. In no event shall the public announcement or disclosure of an Other Meeting Date commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. For purposes of this Section 1.13, the Nomination Notice shall include the following:
(i)A Schedule 14N (or any successor form) relating to each Nominee, completed and filed with the SEC by the Nominating Stockholder as applicable, in accordance with SEC rules;
(ii)A written notice, in a form deemed satisfactory by the Board, of the nomination of each Nominee that includes the following additional information, agreements, representations and warranties by the Nominating Stockholder (including each group member):
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(A)the details of any relationship that existed within the past three (3) years and that would have been described pursuant to Item 6(e) of Schedule 14N (or any successor item) if it existed on the date of submission of the Schedule 14N;
(B)a representation and warranty that the Nominating Stockholder acquired the securities of the Corporation in the ordinary course of business and did not acquire, and is not holding, securities of the Corporation for the purpose or with the effect of influencing or changing control of the Corporation;
(C)a representation and warranty that each Nominee’s candidacy or, if elected, Board membership would not violate applicable state or federal law or the rules of any stock exchange on which the Corporation’s securities are traded;
(D)a representation and warranty that each Nominee:
(1)does not have any direct or indirect relationship with the Corporation that would cause the Nominee to be considered not independent pursuant to the Corporation’s Corporate Governance Guidelines as most recently published on its website and otherwise qualifies as independent under the rules of the primary stock exchange on which the Corporation’s shares of common stock are traded;
(2)meets the audit committee and compensation committee independence requirements under the rules of the primary stock exchange on which the Corporation’s shares of common stock are traded;
(3)is a “non-employee director” for the purposes of Rule 16b-3 under the Exchange Act (or any successor rule);
(4)is an “outside director” for the purposes of Section 162(m) of the Internal Revenue Code (or any successor provision); and
(5)is not and has not been subject to any event specified in Rule 506(d)(1) of Regulation D (or any successor rule) under the Securities Act of 1933, as amended (the “Securities Act”) or Item 401(f) of Regulation S-K (or any successor rule) under the Exchange Act, without reference to whether the event is material to an evaluation of the ability or integrity of such Nominee;
(E)a representation and warranty that the Nominating Stockholder satisfies the eligibility requirements set forth in Section 1.13(c) and has provided evidence of ownership to the extent required by Section 1.13(c)(i);
(F)a representation and warranty that the Nominating Stockholder intends to continue to satisfy the eligibility requirements described in Section 1.13(c) through the date of the annual meeting and a statement regarding the Nominating Stockholder’s intent with respect to continued ownership of the Minimum Number of shares for at least one (1) year following the annual meeting;
(G)details of any position of a Nominee as an officer or director of any competitor (that is, any entity that produces products or provides services that compete with or are alternatives to the products produced or services provided by the Corporation or its affiliates) of the Corporation, within the three (3) years preceding the submission of the Nomination Notice;
(H)a representation and warranty that the Nominating Stockholder will not engage in a “solicitation” within the meaning of Rule 14a-1(l) (without reference to the exception in Rule 14a-1(l)(2)(iv)) under the Exchange Act (or any successor rules) with respect to the annual meeting, other than with respect to a Nominee or any nominee of the Board;
(I)a representation and warranty that the Nominating Stockholder will not use any proxy card other than the Corporation’s proxy card in soliciting stockholders in connection with the election of a Nominee at the annual meeting;
(J)if desired, a Supporting Statement; and
(K)in the case of a nomination by a group, the designation by all group members of one group member that is authorized to act on behalf of all group members with respect to matters relating to the nomination, including withdrawal of the nomination;
(iii)An executed agreement, in a form deemed satisfactory by the Board, pursuant to which the Nominating Stockholder (including each group member) agrees:
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(A)to comply with all applicable laws, rules and regulations in connection with the nomination, solicitation and election;
(B)to file any written solicitation materials with the Corporation’s stockholders relating to one or more of the Corporation’s directors or director nominees or any Nominee with the SEC, regardless of whether any such filing is required under rule or regulation or whether any exemption from filing is available for such materials under any rule or regulation;
(C)to assume all liability stemming from an action, suit or proceeding concerning any actual or alleged legal or regulatory violation arising out of any communication by the Nominating Stockholder or any of its Nominees with the Corporation, its stockholders or any other person in connection with the nomination or election of directors, including, without limitation, the Nomination Notice;
(D)to indemnify and hold harmless (jointly with all other group members, in the case of a group member) the Corporation and each of its directors, officers and employees individually against any liability, loss, damages, expenses or other costs (including attorneys’ fees incurred in connection with any threatened or pending action, suit or proceeding, whether legal, administrative or investigative, against the Corporation or any of its directors, officers or employees arising out of or relating to a failure or alleged failure of the Nominating Stockholder or any of its Nominees to comply with, or any breach or alleged breach of, its or their obligations, agreements or representations under this Section 1.13;
(E)in the event that any information included in the Nomination Notice, or any other communication by the Nominating Stockholder (including with respect to any group member), with the Corporation, its stockholders or any other person in connection with the nomination or election ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading), or that the Nominating Stockholder (including any group member) has failed to continue to satisfy the eligibility requirements described in Section 1.13(c), to promptly (and in any event within forty-eight (48) hours of discovering such misstatement, omission or failure) notify the Chief Legal Officer of the Corporation and any other recipient of such communication of (A) the misstatement or omission in such previously provided information and of the information that is required to correct the misstatement or omission or (B) such failure; and
(iv)An executed agreement, in a form deemed satisfactory by the Board, by each Nominee:
(A)to provide to the Corporation all information relating to such Nominee that is required to be disclosed in solicitations of proxies for the election of directors, or is otherwise required, pursuant to Regulation 14A under the Exchange Act (including such Nominee’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected);
(B)to provide to the Corporation such other information and certifications, including completion of the Corporation’s director questionnaire, as it may reasonably request;
(C)at the reasonable request of the Nominating and Corporate Governance Committee, to meet with the Nominating and Corporate Governance Committee to discuss matters relating to the nomination of such Nominee to the Board, including the information provided by such Nominee to the Corporation in connection with his or her nomination and such Nominee’s eligibility to serve as a member of the Board;
(D)that such Nominee has read and agrees, if elected, to serve as a member of the Board, to adhere to the Corporation’s Corporate Governance Guidelines, Code of Business Conduct and Ethics, Related-Party Transactions Policy and any other Corporation policies and guidelines applicable to directors; and
(E)that such Nominee is not and will not become a party to (i) any compensatory, payment or other financial agreement, arrangement or understanding with any person or entity in connection with his or her nomination, service or action as a director of the Corporation that has not been disclosed to the Corporation or (ii) any agreement, arrangement or understanding with, or any commitment or assurance to, any person or entity as to how such Nominee, if elected as a director of the Corporation, will act or vote on any issue or question, that (a) has not been disclosed to the Corporation or (b) could limit or interfere with such Nominee’s ability to comply, if elected as a director of the Corporation, with its fiduciary duties under applicable law.
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(v)The information and documents required by this Section 1.13(d) to be provided by the Nominating Stockholder shall be: (i) provided with respect to and executed by each group member, in the case of information applicable to group members; and (ii) provided with respect to the persons specified in Instruction 1 to Items 6(c) and (d) of Schedule 14N (or any successor item) in the case of a Nominating Stockholder or group member that is an entity. The Nomination Notice shall be deemed submitted on the date on which all the information and documents referred to in this Section 1.13(d) (other than such information and documents contemplated to be provided after the date the Nomination Notice is provided) have been delivered to or, if sent by mail, received by the Chief Legal Officer of the Corporation.
(e)Exceptions.
(i)Notwithstanding anything to the contrary contained in this Section 1.13, the Corporation may omit from its proxy statement any Nominee and any information concerning such Nominee (including a Nominating Stockholder’s Supporting Statement) and no vote on such Nominee will occur (notwithstanding that proxies in respect of such vote may have been received by the Corporation), and the Nominating Stockholder may not, after the last day on which a Nomination Notice would be timely, cure in any way any defect preventing the nomination of such Nominee, if:
(A)the Nominating Stockholder or the designated lead group member, as applicable, or any qualified representative thereof, does not appear at the meeting of stockholders to present the nomination submitted pursuant to this Section 1.13, the Nominating Stockholder withdraws its nomination or the chairperson of the annual meeting declares that such nomination was not made in accordance with the procedures prescribed by this Section 1.13 and shall therefore be disregarded;
(B)the Board determines that such Nominee’s nomination or election to the Board would result in the Corporation violating or failing to be in compliance with the Corporation’s bylaws or certificate of incorporation or any applicable law, rule or regulation to which the Corporation is subject, including any rules or regulations of the primary stock exchange on which the Corporation’s common stock is traded;
(C)such Nominee was nominated for election to the Board pursuant to this Section 1.13 at one of the Corporation’s two preceding annual meetings of stockholders and either withdrew or became ineligible or received a vote of less than twenty five percent (25%) of the shares of common stock entitled to vote for such Nominee;
(D)such Nominee is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in a criminal proceeding within the past ten (10) years;
(E)such Nominee has been, within the past three (3) years, an officer or director of a competitor, as defined for purposes of Section 8 of the Clayton Antitrust Act of 1914, as amended; or
(F)the Corporation is notified, or the Board determines, that the Nominating Stockholder or the Nominee has failed to continue to satisfy the eligibility requirements described in Section 1.13(c), any of the representations and warranties made in the Nomination Notice ceases to be true and accurate in all material respects (or omits a material fact necessary to make the statements made not misleading), such Nominee becomes unwilling or unable to serve on the Board or any material violation or breach occurs of the obligations, agreements, representations or warranties of the Nominating Stockholder or such Nominee under this Section 1.13;
(ii)Notwithstanding anything to the contrary contained in this Section 1.13, the Corporation may omit from its proxy statement, or may supplement or correct, any information, including all or any portion of the Supporting Statement or any other statement in support of a Nominee included in the Nomination Notice, if the Board determines that:
(A)such information is not true in all material respects or omits a material statement necessary to make the statements made not misleading;
(B)such information directly or indirectly impugns the character, integrity or personal reputation of, or directly or indirectly makes charges concerning improper, illegal or immoral conduct or associations, without factual foundation, with respect to, any person or other argumentum ad hominem; or
(C)the inclusion of such information in the proxy statement would otherwise violate the SEC proxy rules or any other applicable law, rule or regulation.
The Corporation may solicit against, and include in the proxy statement its own statement relating to, any Nominee.
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ARTICLE II
BOARD OF DIRECTORS
Section 2.1.Number; Qualifications. The Board of Directors shall consist of one or more members. The number of authorized directors shall be fixed from time to time by resolution of the Board of Directors. No decrease in the authorized number of directors constituting the Board of Directors shall shorten the term of any incumbent director. Directors need not be stockholders of the Corporation.
Section 2.2.Election; Resignation; Removal; Vacancies. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, each director shall be elected to hold office for a term expiring at the next annual meeting of stockholders or until such director’s earlier death, designation or removal, as provided in the Certificate of Incorporation of the Corporation. Any director may resign at any time upon notice to the Corporation given in writing or by electronic transmission. Subject to the rights of the holders of any series of Preferred Stock, any director may be removed from the Board with or without cause by the affirmative vote of the holders of a majority of the voting power of the then outstanding shares of capital stock of the Corporation then entitled to vote at an election of directors. Subject to the rights of the holders of any series of Preferred Stock, any vacancy occurring in the Board of Directors for any cause, and any newly created directorship resulting from any increase in the authorized number of directors, shall, unless as otherwise provided by law, be filled only by the affirmative vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director. Any director elected to fill a vacancy created by a newly created directorship shall hold office for a term expiring at the next annual meeting of stockholders or until such director’s earlier death, resignation or removal. No decrease in the authorized number of directors shall shorten the term of any incumbent director. A nominee for director shall be elected to the Board of Directors if the votes cast for such nominee’s election exceed the votes cast against such nominee’s election; provided, however, that directors shall be elected by a plurality of the votes cast at any meeting of stockholders for which (i) the Secretary receives a notice that a stockholder has nominated a person for election to the Board of Directors in compliance with the advance notice requirements for stockholder nominees for director set forth in Sections 1.12 and 1.13 of these Bylaws and (ii) such nomination has not been withdrawn by such stockholder on or before the tenth (10th) day before the Corporation first mails its notice of meeting for such meeting to the stockholders. If directors are to be elected by a plurality of the votes cast, stockholders shall not be permitted to vote against a nominee.
Section 2.3.Regular Meetings. Regular meetings of the Board of Directors may be held at such places, within or without the State of Delaware, and at such times as the Board of Directors may from time to time determine. Notice of regular meetings need not be given if the date, times and places thereof are fixed by resolution of the Board of Directors.
Section 2.4.Special Meetings. Special meetings of the Board of Directors may be called by the Chairperson of the Board of Directors, the President, the Lead Independent Director or a majority of the members of the Board of Directors then in office and may be held at any time, date or place, within or without the State of Delaware, as the person or persons calling the meeting shall fix. Notice of the time, date and place of such meeting shall be given, orally, in writing or by electronic transmission (including electronic mail), by the person or persons calling the meeting to all directors at least four (4) days before the meeting if the notice is mailed, or at least twenty-four (24) hours before the meeting if such notice is given by telephone, hand delivery, electronic mail or other means of electronic transmission. Unless otherwise indicated in the notice, any and all business may be transacted at a special meeting.
Section 2.5.Remote Meetings Permitted. Members of the Board of Directors, or any committee of 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 pursuant to conference telephone or other communications equipment shall constitute presence in person at such meeting.
Section 2.6.Quorum; Vote Required for Action. At all meetings of the Board of Directors a majority of the total number of authorized directors shall constitute a quorum for the transaction of business. Except as otherwise provided herein or in the Certificate of Incorporation of the Corporation, or required by law, the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
Section 2.7.Organization. Meetings of the Board of Directors shall be presided over by the Chairperson of the Board of Directors, or in such person’s absence by the Lead Independent Director, or in such person’s absence by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in such person’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
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Section 2.8.Written Action by Directors. 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 or such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee, respectively. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 2.9.Powers. The Board of Directors may, except as otherwise required by law or the Certificate of Incorporation of the Corporation, exercise all such powers and do all such acts and things as may be exercised or done by the Corporation.
Section 2.10.Compensation of Directors. Directors, as such, may receive, pursuant to a resolution of the Board of Directors, fees and other compensation for their services as directors, including without limitation their services as members of committees of the Board of Directors.
ARTICLE III
COMMITTEES
Section 3.1.Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting of such committee who are not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent provided in a resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by the DGCL to be submitted to stockholders for approval or (ii) adopting, amending or repealing any bylaw of the Corporation.
Section 3.2.Committee Rules. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board of Directors conducts its business pursuant to Article II of these Bylaws.
Adequate provision shall be made for notice to members of all meetings, 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 thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of the proceedings of such 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.
ARTICLE IV
OFFICERS
Section 4.1.Generally. The officers of the Corporation shall consist of a Chief Executive Officer and/or a President, one or more Vice Presidents, a Secretary, a Treasurer and such other officers, including a Chairperson of the Board of Directors and/or Chief Financial Officer, as may from time to time be appointed by the Board of Directors. All officers shall be elected by the Board of Directors. Each officer shall hold office until such person’s successor is elected and qualified or until such person’s earlier resignation or removal. Any number of offices may be held by the same person. Any officer may resign at any time upon written notice to the Corporation. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled by the Board of Directors.
Section 4.2.Chief Executive Officer. Subject to the control of the Board of Directors and such supervisory powers, if any, as may be given by the Board of Directors, the powers and duties of the Chief Executive Officer of the Corporation are:
(a)To act as the general manager and, subject to the control of the Board of Directors, to have general supervision, direction and control of the business and affairs of the Corporation;
(b)To preside at all meetings of the stockholders;
(c)To call meetings of the stockholders to be held at such times and, subject to the limitations prescribed by law or by these Bylaws, at such places as he or she shall deem proper; and
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(d)To affix the signature of the Corporation to all deeds, conveyances, mortgages, guarantees, leases, obligations, bonds, certificates and other papers and instruments in writing which have been authorized by the Board of Directors or which, in the judgment of the Chief Executive Officer, should be executed on behalf of the Corporation; to sign certificates for shares of stock of the Corporation; and, subject to the direction of the Board of Directors, to have general charge of the property of the Corporation and to supervise and control all officers, agents and employees of the Corporation.
The President shall be the Chief Executive Officer of the Corporation unless the Board of Directors shall designate another officer to be the Chief Executive Officer. If there is no President, and the Board of Directors has not designated any other officer to be the Chief Executive Officer, then the Chairperson of the Board of Directors shall be the Chief Executive Officer.
Section 4.3.Chairperson of the Board. The Chairperson of the Board of Directors shall have the power to preside at all meetings of the Board of Directors and shall have such other powers and duties as provided in these Bylaws and as the Board of Directors may from time to time prescribe.
Section 4.4.Lead Independent Director. The Board may, in its discretion elect a Lead Independent Director from among its members that are “Independent Directors” (as defined below). He or she shall preside at all meetings at which the Chairperson of the Board is not present and shall exercise such other powers and duties as may from time to time be assigned to him or her by the Board or as prescribed by these Bylaws. For purposes of these Bylaws, “Independent Director” has the meaning ascribed to such term under the rules of The NASDAQ Stock Market or other stock exchange upon which the Corporation’s common stock is primarily traded.
Section 4.5.President. The President shall be the Chief Executive Officer of the Corporation unless the Board of Directors shall have designated another officer as the Chief Executive Officer of the Corporation. Subject to the provisions of these Bylaws and to the direction of the Board of Directors, and subject to the supervisory powers of the Chief Executive Officer (if the Chief Executive Officer is an officer other than the President), and subject to such supervisory powers and authority as may be given by the Board of Directors to the Chairperson of the Board of Directors, and/or to any other officer, the President shall have the responsibility for the general management the control of the business and affairs of the Corporation and the general supervision and direction of all of the officers, employees and agents of the Corporation (other than the Chief Executive Officer, if the Chief Executive Officer is an officer other than the President) and shall perform all duties and have all powers that are commonly incident to the office of President or that are delegated to the President by the Board of Directors.
Section 4.6.Vice President. Each Vice President shall have all such powers and duties as are commonly incident to the office of Vice President, or that are delegated to him or her by the Board of Directors or the Chief Executive Officer. A Vice President may be designated by the Board to perform the duties and exercise the powers of the Chief Executive Officer in the event of the Chief Executive Officer’s absence or disability.
Section 4.7.Chief Financial Officer. The Chief Financial Officer shall be the Treasurer of the Corporation unless the Board of Directors shall have designated another officer as the Treasurer of the Corporation. Subject to the direction of the Board of Directors and the Chief Executive Officer, the Chief Financial Officer shall perform all duties and have all powers that are commonly incident to the office of Chief Financial Officer.
Section 4.8.Treasurer. The Treasurer shall have custody of all monies and securities of the Corporation. The Treasurer shall make such disbursements of the funds of the Corporation as are authorized and shall render from time to time an account of all such transactions. The Treasurer shall also perform such other duties and have such other powers as are commonly incident to the office of Treasurer, or as the Board of Directors or the Chief Executive Officer may from time to time prescribe.
Section 4.9.Secretary. The Secretary shall issue or cause to be issued all authorized notices for, and shall keep, or cause to be kept, minutes of all meetings of the stockholders and the Board of Directors. The Secretary shall have charge of the corporate minute books and similar records and shall perform such other duties and have such other powers as are commonly incident to the office of Secretary, or as the Board of Directors or the Chief Executive Officer may from time to time prescribe.
Section 4.10.Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof.
Section 4.11.Removal. Any officer of the Corporation shall serve at the pleasure of the Board of Directors and may be removed at any time, with or without cause, by the Board of Directors. Such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation.
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ARTICLE V
STOCK
Section 5.1.Certificates. Shares of stock of the Corporation shall be represented by certificates in such form as the officers of the Corporation may from time to time prescribe or shall be uncertificated. If shares of stock of the Corporation are represented by certificates, then such certificates shall be numbered and registered, shall exhibit the holder’s name and the number of shares, and shall be signed by or in the name of the Corporation by the Chairperson or Vice-Chairperson of the Board of Directors, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation. Any or all of the signatures on the certificate may be a facsimile. At all times that the Corporation’s stock is listed on a U.S. national securities exchange, (a) the shares of stock of the Corporation shall comply with all direct registration system eligibility requirements established by such exchange, including, without limitation, any requirement that shares of stock of the Corporation be eligible for issue in book-entry form, and (b) all issuances and transfers of shares of stock of the Corporation shall be entered on the books of the Corporation with all information necessary to comply with such direct registration system eligibility requirements, including the name and address of the person to whom the shares of stock are issued, the number of shares of stock issued and the date of issue.
Section 5.2.Lost, Stolen or Destroyed Stock Certificates. Except as provided in this Section 5.2, no new certificate of stock in the Corporation shall be issued in place of any certificate previously issued by the Corporation, alleged to have been lost, stolen or destroyed. The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to agree to indemnify the Corporation and/or to give the Corporation a bond sufficient to indemnify it, against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
Section 5.3.Other Regulations. The issue, transfer, conversion and registration of shares of stock of the Corporation shall be governed by such other regulations as the Board of Directors may establish in both the certificated and uncertificated forms.
ARTICLE VI
INDEMNIFICATION
Section 6.1.Indemnification of Officers and Directors. Each person who was or is made a party to, or is threatened to be made a party to, or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that such person (or a person of whom such person is the legal representative), is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by the DGCL, against all expenses, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith, provided such person acted in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. Such indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of such person’s heirs, executors and administrators. Notwithstanding the foregoing, the Corporation shall indemnify any such person seeking indemnity in connection with a Proceeding (or part thereof) initiated by such person only if such Proceeding (or part thereof) was authorized by the Board of Directors of the Corporation, or if such indemnification is authorized by an agreement approved by the Board of Directors.
Section 6.2.Advance of Expenses. The Corporation shall pay all expenses (including attorneys’ fees) incurred by such a director or officer in defending any such Proceeding as they are incurred in advance of its final disposition; provided, however, that if the DGCL then so requires, the payment of such expenses incurred by such a director or officer in advance of the final disposition of such Proceeding shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it should be determined ultimately that such director or officer is not entitled to be indemnified under this Article VI or otherwise; and provided, further, that the Corporation shall not be required to advance any expenses to a person against whom the Corporation directly brings a claim, in a Proceeding, alleging that such person has breached such person’s duty of loyalty to the Corporation, committed an act or omission not in good faith or that involves intentional misconduct or a knowing violation of law, or derived an improper personal benefit from a transaction.
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Section 6.3.Non-Exclusivity of Rights. The rights conferred on any person in this Article VI shall not be exclusive of any other right that such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation of the Corporation, Bylaw, agreement, vote or consent of stockholders or disinterested directors, or otherwise. Additionally, nothing in this Article VI shall limit the ability of the Corporation, in its discretion, to indemnify or advance expenses to persons whom the Corporation is not obligated to indemnify or advance expenses pursuant to this Article VI.
第6.4節補償合同。 董事會有權讓公司與公司的任何董事、高管、僱員或代理人，或應請求公司擔任另一家公司、合夥企業、合資企業、信託或其他企業（包括僱員福利計劃）的董事、高管、僱員或代理人的任何人簽訂補償合同，爲此類人提供補償權利。這些權利可能高於本 第六條.
第6.5節修正的效力。 對本條款的任何修正、廢止或修改僅具有前瞻性，不得對根據本條款授予個人的任何權利或保護造成不利影響。 第六條 並且不得對因修正、廢止或修改而存在的個人根據本條款享有的任何權利或保護造成不利影響。 第六條 且在修正、廢止或修改時已存在的任何權利或保護。
第七條
通知
第7.1節。通知。
(a)除非本章程中另有明確規定（包括但不限於 第 7.1 (b) 節 下文）或法律要求，根據本章程要求發出的所有通知均應以書面形式發出，並且在任何情況下均可通過親手交付（包括使用送貨服務）、郵寄此類通知、郵資預付的方式或通過隔夜快遞、電子郵件或其他電子傳輸方式發送此類通知來有效發出。任何此類通知應發給應向其發出通知的人，其地址應與公司記錄中顯示的地址相同。在下列情況下，通知應被視爲已送達：(i) 如果是親手遞送，當通知被收件人或代表該人接受此類通知的任何人收到時；(ii) 如果是通過郵件遞送，則存入郵件；(iii) 隔夜快遞員在發貨時；(iv) 通過電子郵件或其他電子傳輸手段交付時，在發出時，應將通知視爲已送達。
(b)不限制以其他方式向股東有效通知的方式，公司根據DGCL的任何規定、公司的公司章程或這些章程下的通知對股東的任何通知，如果通過股東同意的電子傳輸形式給予，即視爲有效。任何此類同意均可由收到通知的股東書面通知公司首席法務官來撤銷。如果（i）公司無法按照此類同意發送的兩次連續通知通過電子傳輸進行投遞且（ii）秘書或公司的助理秘書或負責發送通知的過戶代理或其他負責人，得知此種無法投遞，則視爲此類同意已被撤銷。 在每種情況下，該B類股東和/或該B類股東的家庭成員需獨立控制在此類帳戶、計劃或信託中持有的B類普通股實時；, 公司對於以下情況，不應承擔責任：根據第10（b）部分書面信息可靠地提供。，對於此種無法投遞的錯誤對待未導致任何會議或其他行動無效。根據此處給予的通知視爲已給予：（i）如果通過電子郵件，則在發送到股東已同意接收通知的電子郵箱地址時視爲已給予；（ii）如果通過電子網絡發佈以及對股東進行有關該特定發佈的單獨通知，則在（A）該發佈和（B）進行此類單獨通知後最晚即視爲已給予；以及（iii）如果通過任何其他形式的電子傳輸，則在發送到股東時視爲已給予。 第7.1（b）條 應認爲已經給予通知：（i）如果通過電子郵件發送，則在發送到股東已同意接收通知的電子郵箱地址時視爲已給予；（ii）如果通過電子網絡發佈以及對股東進行有關該特定發佈的單獨通知，則在（A）該發佈和（B）進行此類單獨通知後最晚即視爲已給予；以及（iii）如果通過任何其他形式的電子傳輸發送，則在發送到股東時視爲已給予。
(c)秘書或助理秘書、過戶代理或公司的其他代理出具的書面通知或電子傳輸形式的確認函，在沒有欺詐的情況下， 乍一看 有關事實的證據已在其中陳述。
第7.2節。免除通知。 無論根據這些章程的哪一條規定都需要進行通知時，被通知人簽署的書面豁免通知，或者由該人員通過電子傳輸豁免，無論在通知聲明的時間之前還是之後，均視爲通知。出席會議的人員應視爲對該會議的通知豁免，但當出席會議的人員出席會議的開頭爲反對因會議未經合法召集而進行任何業務交易而出席會議時除外。無需在任何通知豁免中指定對股東、董事或董事會委員會的任何常規或特別會議要進行的業務或目的。
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第八條
利益相關董事
第8.1節。對於感興趣的董事；法定人數。 公司與其一名或多名董事或高級職員之間，或公司與任何其他董事或高級職員兼任董事或高級職員的其他公司、合夥企業、協會或其他組織之間的合同或交易，或者因爲這個原因，或者僅僅因爲董事或高級職員出席或參與授權合同或交易的董事會會議或其中委員會的會議，或僅僅因爲這樣的董事或高級職員的投票被計入此目的，而無效或可撤銷，如果：（i）關於董事或高級職員的關係或利益及合同或交易的重要事實已經披露或爲董事會或委員會所知，並由不帶有利害關係的董事多數的肯定投票以善意授權合同或交易，即使不帶有利益關係的董事不足法定人數；（ii）關於董事或高級職員的關係或利益及合同或交易的重要事實已經披露或爲有權對其進行表決的股東所知，並且股東們根據股東的表決信任進行表決；或者（iii）合同或交易在董事會、其委員會或股東授權、批准或 ratify 時對公司是公平的。在確定董事會或授權合同或交易的委員會會議的出席人數時，共同或有利害關係的董事均可計算入內。
第九條
其他條款(無需翻譯)
第9.1節。財政年度。 公司的財政年度應由董事會決定。
第9.2節。印章。 董事會可以設立公司印章，其上應有公司名稱，其他形式應經董事會不時批准。
第9.3節。記錄形式。 公司在正常業務過程中維護的任何記錄，包括其股份名冊、賬簿和會議記錄，可以採用任何信息存儲裝置或方法，或通過一個或多個電子網絡或數據庫（包括一個或多個分佈式電子網絡或數據庫）保存，前提是這樣保存的記錄可以在合理時間內轉換成清晰可讀的紙質形式。公司應在依照DGCL的任何規定有權審查這些記錄的人士的要求下轉換所保存的任何記錄爲紙質形式。
第9.4節。對書籍和記錄的依賴。 董事會成員或董事會指定的任何委員會成員，在履行其職責時，在善意地依賴公司的記錄以及公司的任何官員、僱員或董事會委員會、或任何其他人提供給公司的信息、意見、報告或聲明方面，應受到充分的保護，前提是該成員合理地相信這些事項屬於這些其他人的專業或專家能力範圍，而這些其他人是經公司合理謹慎地挑選的。
第9.5節。公司章程爲準。 如果公司章程與公司章程的規定發生衝突，則以公司章程的規定爲準。
第9.6節。可分割性。 如果這些章程的任何規定被認定爲無效、非法、不可執行或與公司章程的規定相沖突，那麼該規定仍應儘可能以符合該判決的最大程度加以執行，並且這些章程的其餘規定（包括但不限於，這些章程中包含任何被認定爲無效、非法、不可執行或與公司章程相沖突的規定的任何部分，而這些部分本身不無效、非法、不可執行或與公司章程相沖突）應繼續完全有效。
第十一條
修訂
第10.1節。修改條款。 持有公司超過半數表決權的股東有權通過、修改或廢除公司章程。在公司的公司章程中規定的範圍內，公司董事會也有權通過、修改或廢除公司章程。
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第11.4條
專屬論壇 如果公司未以書面形式同意選擇另一種論壇，那麼特拉華州司法機構庭（或者，如果特拉華州司法機構庭沒有管轄權，則特拉華州聯邦地區法院）將在法律允許範圍內成爲唯一和專屬的論壇，用於公司提起的任何代表公司的訴訟或程序、任何主張現任或前任董事、官員、其他僱員或股東對公司或公司的股東負有信託責任的訴訟或程序、根據 DGCL、公司的證明書或這些章程產生的任何主張（這些章程可能隨時進行修改或重述），或者 DGCL 授權特拉華州司法機構庭行使管轄權的任何主張；任何購買或以其他方式獲取或持有公司股票權益的個人或實體應被視爲已知悉並同意本第8條的規定。
第11.1節。特拉華論壇。 除非公司書面同意選擇其他論壇，否則特拉華州均爲公司的唯一和專屬論壇：(a) 代表公司提起的任何衍生訴訟或訴訟; (b) 主張董事、高管、股東、僱員或公司代理人應向公司或公司股東承擔的違反受託人責任或其他不當行爲的任何訴訟; (c) 主張根據DGCL、公司章程或這些章程的任何規定或DGCL授予特拉華州均有司法管轄權的特拉華州法庭的任何訴訟; (d) 解釋、應用、執行或確定公司章程或這些章程的有效性的任何訴訟; 或 (e) 由內部事務原則管理的針對公司或公司的董事、高管、股東、僱員或代理人提出的任何訴訟。
第11.2節。專屬聯邦法庭。 除非公司書面同意選擇另一論壇，在法律允許的最大範圍內，美國聯邦地方法院將是解決任何基於證券法的訴訟主張的專屬論壇。
任何購買或以任何其他方式取得或持有公司任何證券利益的個人或實體應被視爲已經通知並同意本條款的規定。 第十一條.
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