UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 7, 2015
Integrated Silicon Solution, Inc.
(Exact name of registrant as specified in its charter)
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Delaware |
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000-23084 |
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77-0199971 |
(State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
1623 Buckeye Drive
Milpitas, California 95035
(Address of principal executive offices, including zip code)
(408) 969-6600
(Registrants telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Introductory Note
As previously disclosed, on March 12, 2015, Integrated Silicon Solution, Inc. (the Company) entered into an Agreement and Plan of
Merger with Uphill Investment Co., a Peoples Republic of China limited liability company (Uphill), as joined by Indigo Acquisition Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Uphill
(Acquisition Sub), providing for the merger (the Merger) of the Acquisition Sub with and into the Company (as amended to date by Amendment No. 1, dated as of April 28, 2015, Amendment No. 2, dated
as of May 29, 2015, Amendment No. 3, dated as of June 11, 2015, Amendment No. 4, dated as of June 18, 2015, and Amendment No. 5, dated as of June 22, 2015, the Merger Agreement). On
December 7, 2015, the Merger was consummated, and the Company became a wholly-owned subsidiary of Uphill.
Item 2.01. Completion of
Acquisition or Disposition of Assets
The information set forth under Item 3.03 of this Current Report on Form 8-K is incorporated into this
Item 2.01 by reference.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
In connection with the consummation of the Merger, the Company has delisted its common stock from NASDAQ, and shares of the Companys common
stock stopped trading after the market closed on December 7, 2015.
In accordance with the rules of the Securities and Exchange Commission (the
SEC) and NASDAQ, the Company has previously provided written notice to NASDAQ of its intent to delist and filed a Form 25 with the SEC on December 3, 2015, to effect the delisting.
The Company intends to file a Form 15 with the SEC under the Securities Exchange Act of 1934, as amended (the Exchange Act), requesting the
deregistration of the Companys common stock under Section 12(g) of the Exchange Act and the suspension of the Companys reporting obligations under Section 15(d) of the Exchange Act. As of the date of the filing of the Form 15,
the obligation of the Company to file reports under the Exchange Act, including Forms 10-K, 10-Q and 8-K, will be immediately suspended. Other filing requirements will terminate upon the effectiveness of the deregistration under Section 12(g)
of the Exchange Act, which is expected to occur 90 days after the filing of the Form 15.
Item 3.03. Material Modification to Rights of Security
Holders
Pursuant to the terms of the Merger Agreement, at the time of the closing of the Merger, each share of the Companys common stock issued
and outstanding immediately prior to the effective time of the Merger was converted into the right to receive $23.00 in cash (the Merger Consideration).
The descriptions herein of the Merger Consideration, the Merger and the Merger Agreement do not purport to be complete and are qualified in their entirety by
reference to the full text of the Merger Agreement which was filed as Exhibit 2.1 to the Companys Current Report on Form 8-K filed with the SEC on March 12, 2015 and as amended as set forth in the Introductory Note above.
Item 5.01. Changes in Control of Registrant
As a
result of the Merger, the Company became a wholly-owned subsidiary of Uphill. The disclosure under Item 3.03 is incorporated herein by reference.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain Officers
In connection with the Merger, the directors of the Acquisition Sub became the directors of
the Company.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
At the effective time of the Merger, the Certificate of Incorporation of the Company was amended and restated to read as set forth on Exhibit 3.1 to this
report, and the bylaws of Acquisition Sub became the bylaws of the Company and are set forth on Exhibit 3.2 to this report.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit No. |
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Description of Exhibit |
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2.1 |
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Agreement and Plan of Merger, dated March 12, 2015, by and among Uphill Investment Co. and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by the Company on
March 12, 2015) |
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2.2 |
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Amendment No. 1 to Agreement and Plan of Merger, dated April 28, 2015, by and among Uphill Investment Co., Indigo Acquisition Sub, and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by the Company on April 28, 2015) |
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2.3 |
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Amendment No. 2 to Agreement and Plan of Merger, dated May 29, 2015, by and among Uphill Investment Co., Indigo Acquisition Sub, and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by the Company on May 29, 2015) |
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2.4 |
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Amendment No. 3 to Agreement and Plan of Merger, dated June 11, 2015, by and among Uphill Investment Co., Indigo Acquisition Sub, and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by the Company on June 11, 2015) |
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2.5 |
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Amendment No. 4 to Agreement and Plan of Merger, dated June 18, 2015, by and among Uphill Investment Co., Indigo Acquisition Sub, and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by the Company on June 19, 2015) |
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2.6 |
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Amendment No. 5 to Agreement and Plan of Merger, dated June 22, 2015, by and among Uphill Investment Co., Indigo Acquisition Sub, and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by the Company on June 23, 2015) |
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3.1 |
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Amended and Restated Certificate of Incorporation |
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3.2 |
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Amended and Restated Bylaws |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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INTEGRATED SILICON SOLUTION, INC. |
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Date: December 7, 2015 |
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/s/ JOHN M. COBB |
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John M. Cobb |
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Vice President and Chief Financial Officer |
EXHIBIT INDEX
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Exhibit No. |
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Description of Exhibit |
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2.1 |
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Agreement and Plan of Merger, dated March 12, 2015, by and among Uphill Investment Co. and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by the Company on
March 12, 2015) |
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2.2 |
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Amendment No. 1 to Agreement and Plan of Merger, dated April 28, 2015, by and among Uphill Investment Co., Indigo Acquisition Sub, and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by the Company on April 28, 2015) |
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2.3 |
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Amendment No. 2 to Agreement and Plan of Merger, dated May 29, 2015, by and among Uphill Investment Co., Indigo Acquisition Sub, and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by the Company on May 29, 2015) |
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2.4 |
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Amendment No. 3 to Agreement and Plan of Merger, dated June 11, 2015, by and among Uphill Investment Co., Indigo Acquisition Sub, and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by the Company on June 11, 2015) |
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2.5 |
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Amendment No. 4 to Agreement and Plan of Merger, dated June 18, 2015, by and among Uphill Investment Co., Indigo Acquisition Sub, and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by the Company on June 19, 2015) |
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2.6 |
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Amendment No. 5 to Agreement and Plan of Merger, dated June 22, 2015, by and among Uphill Investment Co., Indigo Acquisition Sub, and Integrated Silicon Solution, Inc. (incorporated by reference to Exhibit 2.1 to the Current
Report on Form 8-K filed by the Company on June 23, 2015) |
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3.1 |
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Amended and Restated Certificate of Incorporation |
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3.2 |
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Amended and Restated Bylaws |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
INTEGRATED SILICON
SOLUTION, INC.
ARTICLE 1
The
name of the Corporation is Integrated Silicon Solution, Inc. (the Corporation).
ARTICLE 2
The address of the Corporations registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, 19801, County of New
Castle. The name of its registered agent at such address is The Corporation Trust Company.
ARTICLE 3
The nature of the business of the Corporation and the objects or purposes to be transacted, promoted or carried on by it are as follows: To engage in any
lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
ARTICLE 4
The total number of shares of all classes of stock that the Corporation is authorized to issue is one thousand (1,000) shares of Common Stock
with a par value of $0.001 per share.
ARTICLE 5
The Board of Directors is expressly authorized to adopt, amend and repeal the Bylaws of the Corporation.
ARTICLE 6
Elections of directors need
not be by written ballot unless the Bylaws of the Corporation shall so provide.
ARTICLE 7
Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its
stockholders or any class of them,
any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or of any creditor or stockholder thereof on the application of any
receiver or receivers appointed for the Corporation under the provisions of Section 291 of Delaware General Corporation Law or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the
provisions of Section 279 of Delaware General Corporation Law order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as
the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case
may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of the Corporation, as the case may be, and also on the Corporation.
ARTICLE 8
To the fullest extent
permitted by the Delaware General Corporation Law, as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the directors shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended. The elimination and limitation of liability provided herein shall continue after a director has ceased to occupy such position as to acts or omissions occurring during
such directors term or terms of office.
The Corporation may indemnify to the fullest extent permitted by law any person made or threatened to be
made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director, officer, or employee of the Corporation or any predecessor of the
Corporation or serves or served at any other enterprise as a director, officer, or employee at the request of the Corporation or any predecessor to the Corporation.
Neither any amendment, repeal or modification of this Article 8, nor the adoption of any provision of this Corporations Certificate of Incorporation
inconsistent with this Article 8, shall eliminate or reduce the effect of this Article 8, in respect of any matter occurring, or any action or Proceeding accruing or arising or that, but for this Article 8, would accrue or arise, prior to such
amendment, repeal or adoption of an inconsistent provision.
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ARTICLE 9
The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
[THE REMAINDER
OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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Exhibit 3.2
BYLAWS
OF
INDIGO ACQUISITION SUB, INC.
ARTICLE I
Stockholders
Section 1.1. Annual Meetings. An annual meeting of stockholders shall be held for the election of directors at such
date, time and place either within or without the State of Delaware as may be designated by the Board of Directors from time to time. Any other proper business may be transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of stockholders may be called at any time by the Chairman of the Board, if
any, or the President or the Board of Directors, to be held at such date, time and place either within or without the State of Delaware as may be stated in the notice of the meeting. A special meeting of stockholders shall be called by the Secretary
upon the written request, stating the purpose of the meeting, of stockholders who together own of record a majority of the outstanding shares of each class of stock entitled to vote at such meeting.
Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to take any action at a meeting, a written
notice of the meeting shall be given which shall state the place, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by law, the written notice of
any meeting shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail,
postage prepaid, directed to the stockholder at such stockholders address as it appears on the records of the Corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may be adjourned from time to time, to reconvene
at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any
business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to
each stockholder of record entitled to vote at the meeting.
Section 1.5. Quorum. At each meeting of stockholders, except
where otherwise provided by law or the certificate of incorporation or these bylaws, the holders
of a majority of the outstanding shares of stock entitled to vote on a matter at the meeting, present in person or represented by proxy, shall constitute a quorum. In the absence of a quorum of
the holders of any class of stock entitled to vote on a matter, the holders of such class so present or represented may, by majority vote, adjourn the meeting of such class from time to time in the manner provided by Section 1.4 of these bylaws
until a quorum of such class shall be so present or represented. Shares of its own capital stock belonging on the record date for the meeting to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election
of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the
Corporation to vote stock, including but not limited to its own stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be presided over by the Chairman of the Board, if any, or in the
absence of the Chairman of the Board by the President, or in the absence of the President by a Vice President, or in the absence of the foregoing persons by a chairman designated by the Board of Directors, or in the absence of such designation by a
chairman chosen at the meeting. The Secretary, or in the absence of the Secretary an Assistant Secretary, shall act as secretary of the meeting, but in the absence of the Secretary and any Assistant Secretary the chairman of the meeting may appoint
any person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Unless otherwise provided in the
certificate of incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of stock held by such stockholder which has voting power upon the matter in question. Each stockholder
entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power, regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally. A stockholder may revoke any proxy which is not irrevocable by attending the
meeting and voting in person or by filing an instrument in writing revoking the proxy or another duly executed proxy bearing a later date with the Secretary of the Corporation. Voting at meetings of stockholders need not be by written ballot unless
the holders of a majority of the outstanding shares of all classes of stock entitled to vote thereon present in person or represented by proxy at such meeting shall so determine. With the exception of the first Board of Directors, which shall be
elected by the sole incorporator of the Corporation, directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. In all other
matters, unless otherwise provided by law or by the certificate of incorporation or these bylaws, the affirmative vote of the holders of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the
subject matter
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shall be the act of the stockholders. Where a separate vote by class or classes is required, the affirmative vote of the holders of a majority of the shares of such class or classes present in
person or represented by proxy at the meeting shall be the act of such class or classes, except as otherwise provided by law or by the certificate of incorporation or these bylaws.
Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be 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 of business on the day next preceding the day on which the
meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
In order that the Corporation may determine the stockholders entitled to consent to corporate action in
writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten
days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of Directors is required by law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation
by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the books and records in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporations registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by law,
the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of
any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not
precede the date upon which the
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resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 1.9. List of Stockholders Entitled to Vote. The Secretary shall prepare and make, at least ten days before every
meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list
shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may
be inspected by any stockholder who is present.
Section 1.10. Consent of Stockholders in Lieu of Meeting. Unless
otherwise provided in the certificate of incorporation or by law, any action required by law, or which otherwise may be taken at any annual or special meeting of stockholders of the Corporation, may be taken without a meeting, without prior notice
and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to (a) its registered office in the State of Delaware by hand or by certified mail or registered mail, return
receipt requested, (b) its principal place of business or (c) an officer or agent of the Corporation having custody of the books and records in which proceedings of meetings of stockholders are recorded. Every written consent shall bear
the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate action referred to therein unless, within sixty days of the earliest dated consent delivered to the Corporation in the
manner required by this bylaw, written consents signed by a sufficient number of holders to take such action are delivered to the Corporation by delivery to (a) its registered office in the State of Delaware by hand or by certified or
registered mail, return receipt requested, (b) its principal place of business or (c) an officer or agent of the Corporation having custody of the books and records in which proceedings of meetings of stockholders are recorded. Prompt
notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled
to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to the Corporation as provided in this Section 1.10.
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ARTICLE II
Board of Directors
Section 2.1. Powers; Number; Qualifications. The business and affairs of the Corporation shall be managed by or under the
direction of the Board of Directors, except as may be otherwise provided by law or in the certificate of incorporation. The Board of Directors shall consist of one or more members, the number thereof to be determined from time to time by the Board.
Directors need not be stockholders.
Section 2.2. Election; Term of Office; Resignation; Removal; Vacancies. Each
director shall hold office until his or her successor is elected and qualified or until his or her earlier death, resignation or removal. Any director may resign at any time upon written notice to the Board of Directors or to the President or the
Secretary of the Corporation. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. Unless otherwise provided in the
certificate of incorporation or these bylaws, vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class or from any other
cause may be filled by a majority of the directors then in office, although less than a quorum, or by the sole remaining director. Any director elected or appointed to fill a vacancy shall hold office until the next annual meeting of stockholders at
which his or her successor is elected and qualified or until his or her earlier resignation or removal.
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 may from time to time determine, and if so determined, notice thereof need not be given.
Section 2.4. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without
the State of Delaware whenever called by the Chairman of the Board, if any, by the President or by any two directors. Reasonable notice thereof shall be given by the person or persons calling the meeting.
Section 2.5. Participation in Meetings by Conference Telephone Permitted. Unless otherwise restricted by the certificate of
incorporation or these bylaws, members of the Board of Directors, or any committee designated by the Board, may participate in a meeting of the Board or of such committee, as the case may be, by means of conference telephone or similar
communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this bylaw shall constitute presence in person at such meeting.
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Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of
Directors two-thirds of the entire Board shall constitute a quorum for the transaction of business. 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 unless the certificate of
incorporation or these bylaws shall require a vote of a greater number. In case at any meeting of the Board a quorum shall not be present, the members of the Board present may adjourn the meeting from time to time until a quorum shall be present.
Section 2.7. Organization. Meetings of the Board of Directors shall be presided over by the Chairman of the Board, if
any, or in the absence of the Chairman of the Board by the President, or in their absence by a chairman chosen at the meeting. The Secretary, or in the absence of the Secretary an Assistant Secretary, shall act as secretary of the meeting, but in
the absence of the Secretary and any Assistant Secretary the chairman of the meeting may appoint any person to act as secretary of the meeting.
Section 2.8. Action by Directors Without a Meeting. Unless otherwise restricted by the certificate of incorporation or these
bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board or of such committee, as the case may be, consent thereto in
writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.
Section 2.9. Compensation of Directors. Unless otherwise restricted by the certificate of incorporation or these bylaws, the
Board of Directors shall have the authority to fix the compensation of directors.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors, by resolution passed by the majority of the whole Board, may designate one
or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously
appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors or in these bylaws, shall have and may exercise
all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; 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 law to be submitted to stockholders for approval; (ii) adopting,
amending or repealing these bylaws; or (iii) removing or indemnifying directors.
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Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides,
each committee designated by the Board may adopt, amend and repeal rules for the conduct of its business. In the absence of a provision by the Board or a provision in the rules of such committee to the contrary, a majority of the entire authorized
number of members of such committee shall constitute a quorum for the transaction of business, the vote of a majority of the members present at a meeting at the time of such vote if a quorum is then present shall be the act of such committee, and in
other respects each committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article II of these bylaws.
ARTICLE IV
Officers
Section 4.1. Officers; Election. As soon as practicable after the annual meeting of stockholders in each year, the
Board of Directors shall elect a President and a Secretary, and it may, if it so determines, elect from among its members a Chairman of the Board. The Board may also elect one or more Vice Presidents, one or more Assistant Vice Presidents, one or
more Assistant Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as the Board may deem desirable or appropriate and may give any of them such further designations or alternate titles as it considers desirable. Any
number of offices may be held by the same person unless the certificate of incorporation or these bylaws otherwise provides.
Section 4.2. Term of Office; Resignation; Removal; Vacancies. Unless otherwise provided in the resolution of the Board of
Directors electing any officer, each officer shall hold office until his or her successor is elected and qualified or until his or her earlier resignation or removal. Any officer may resign at any time upon written notice to the Board or to the
President or the Secretary of the Corporation. Such resignation shall take effect at the time specified therein, and unless otherwise specified therein no acceptance of such resignation shall be necessary to make it effective. The Board may remove
any officer with or without cause at any time. Any such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation, but the election of an officer shall not of itself create contractual rights. Any
vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled by the Board at any regular or special meeting.
Section 4.3. Powers and Duties. The officers of the Corporation shall have such powers and duties in the management of the
Corporation as shall be stated in these bylaws or in a resolution of the Board of Directors which is not inconsistent with these bylaws and, to the extent not so stated, as generally pertain to their respective offices, subject to the control of the
Board. The Secretary shall have the duty to record
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the proceedings of the meetings of the stockholders, the Board of Directors and any committees in a book to be kept for that purpose. The Board may require any officer, agent or employee to give
security for the faithful performance of his or her duties.
ARTICLE V
Stock
Section 5.1. Stock Certificates and Uncertificated Shares. The shares of stock in the Corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the Corporations stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate theretofore issued until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution by the Board, every holder of stock represented by certificates, and upon request
every holder of uncertificated shares, shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairman of the Board 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, representing the number of shares of stock in registered or certificate form, as the case may be, that are owned by such holder. If such certificate is manually signed by one officer or
manually countersigned by a transfer agent or by a registrar, any other signature on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated shares and the rights and
obligations of the holders of certificates representing stock of the same class and series shall be identical.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates. The Corporation may issue a new
certificate of stock or uncertificated shares in the place of any certificate theretofore issued by it that is alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of such lost, stolen or destroyed certificate,
or such owners legal representative, 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 or the issuance of such new certificate or
uncertificated shares.
Section 5.3. Electronic Securities Recordation. Notwithstanding the provisions of
Section 5.1 and 5.2 of this Article V, the Corporation may adopt a system of issuance, recordation and transfer of its shares by electronic or other means not involving any issuance of certificates, provided the use of such system by the
Corporation is permitted in accordance with applicable law.
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ARTICLE VI
Miscellaneous
Section 6.1. Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors.
Section 6.2. Seal. The Corporation may have a corporate seal which shall have the name of the Corporation inscribed thereon
and shall be in such form as may be approved from time to time by the Board of Directors. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
Section 6.3. Waiver of Notice of Meetings of Stockholders, Directors and Committees. Whenever notice is required to be given
by law or under any provision of the certificate of incorporation or these bylaws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is
not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any written waiver of notice
unless so required by the certificate of incorporation or these bylaws.
Section 6.4. Indemnification of Directors, Officers
and Employees. The Corporation shall indemnify to the full extent permitted by law any person made or threatened to be made a party to any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the
fact that such person or such persons testator or intestate is or was a director, officer, incorporator or liquidator of the Corporation, is or was a director, officer, trustee, member, stockholder, partner, incorporator or liquidator of a
Subsidiary of the Corporation, or serves or served at the request of the Corporation as a director, officer, trustee, member, stockholder, partner, incorporator or liquidator of or in any other capacity for any other enterprise. Expenses, including
attorneys fees, incurred by any such person in defending any such action, suit or proceeding shall be paid or reimbursed by the Corporation promptly upon demand by such person and, if any such demand is made in advance of the final disposition
of any such action, suit or proceeding, promptly upon receipt by the Corporation of an undertaking of such person to repay such expenses if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation. The
rights provided to any person by this bylaw shall be enforceable against the Corporation by such person, who shall be presumed to have relied upon it in serving or continuing to serve in any of the capacities provided above. In addition, the rights
provided to any person by this bylaw shall survive the termination of such person as any such director, officer, trustee, member, stockholder, partner, incorporator or liquidator and, insofar as such person
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served at the request of the Corporation as a director, officer, trustee, member, stockholder, partner, incorporator or liquidator of or in any other capacity for any other enterprise, shall
survive the termination of such request as to service prior to termination of such request. No amendment of this bylaw shall impair the rights of any person arising at any time with respect to events occurring prior to such amendment.
For purposes of this bylaw, the term Corporation shall include any predecessor of the Corporation and any constituent corporation
(including any constituent of a constituent) absorbed by the Corporation in a consolidation or merger; the term other enterprise shall include any corporation, partnership, joint venture, trust or employee benefit plan; service at
the request of the Corporation shall include service as a director, officer or employee of the Corporation which imposes duties on, or involves services by, such director, officer or employee with respect to an employee benefit plan, its
participants or beneficiaries; any excise taxes assessed on a person with respect to an employee benefit plan shall be deemed to be indemnifiable expenses; and action by a person with respect to an employee benefit plan which such person reasonably
believes to be in the interest of the participants and beneficiaries of such plan shall be deemed to be action not opposed to the best interests of the Corporation.
To the extent authorized from time to time by the Board of Directors, the Corporation may provide to (i) any one or more employees and
agents of the Corporation, (ii) any one or more officers, employees and agents of any Subsidiary and (iii) any one or more directors, officers, employees and agents of any other enterprise, rights of indemnification and to receive payment
or reimbursement of expenses, including attorneys fees, on such terms and conditions as the Board of Directors shall determine that are similar to the rights conferred in this Section 6.4 on directors, officers, employers and liquidators
of the Corporation or any Subsidiary or other enterprise. Any such rights shall have the same force and effect as they would have if they were conferred in this Section 6.4.
Nothing in this Section 6.4 shall limit the power of the Corporation or the Board of Directors to provide rights of indemnification and
to make payment and reimbursement of expenses, including attorneys fees, to directors, officers, employees, agents and other persons otherwise than pursuant to this Section 6.4.
Section 6.5. Interested Directors; Quorum. No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or
voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or her or
their votes are counted for such purpose, if: (1) the material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee, and the Board or committee in good
faith authorizes the contract or
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transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (2) the material facts as to his or her
relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or
(3) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified, by the Board, a committee thereof or the stockholders. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
Section 6.6. Form of Records. Any records maintained by the Corporation in the regular course of its business, including its
stock ledger, books of account and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs or any other information storage device, provided that the records so kept can be converted into clearly
legible form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect the same.
Section 6.7. Amendment of Bylaws. These bylaws may be amended or repealed, and new bylaws adopted, by the Board of Directors,
but the stockholders entitled to vote may adopt additional bylaws and may amend or repeal any bylaw whether or not adopted by them.
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