Attached files
| file | filename |
|---|---|
| 10-Q - 10-Q - Armstrong Energy, Inc. | arms-033117x10q.htm |
| EX-32.1 - EXHIBIT 32.1 - Armstrong Energy, Inc. | arms-033117exhibit321.htm |
| EX-3.1 - EXHIBIT 3.1 - Armstrong Energy, Inc. | arms-033117exhibit31.htm |
| EX-31.2 - EXHIBIT 31.2 - Armstrong Energy, Inc. | arms-033117exhibit312.htm |
| EX-31.1 - EXHIBIT 31.1 - Armstrong Energy, Inc. | arms-033117exhibit311.htm |
| EX-95.1 - EXHIBIT 95.1 - Armstrong Energy, Inc. | arms-033117exhibit951.htm |
| EX-32.2 - EXHIBIT 32.2 - Armstrong Energy, Inc. | arms-033117exhibit322.htm |
ARMSTRONG ENERGY, INC.
AMENDED AND RESTATED BYLAWS
Adopted
as of
October 3, 2011
May 9, 2017
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
ARMSTRONG ENERGY, INC.
1. OFFICES
1.1. Registered Office
The initial registered office of Armstrong Energy, Inc. (the "Corporation") shall be in the City of
Wilmington, County of New Castle, State of Delaware. The initial registered agent in charge thereof shall
be The Corporation Trust Company.
1.2. Other Offices
The Corporation may also have offices at such other places, both within and without the State of
Delaware, as the Board of Directors may from time to time determine or as may be necessary or useful in
connection with the business of the Corporation.
2. MEETINGS OF STOCKHOLDERS
2.1. Time and Place of Meetings
All meetings of the stockholders for the election of Directors or for any other purpose shall be held
at such time and place, either within or without the State of Delaware, as shall be designated from time to
time by the Board of Directors of the Corporation or, in the absence of a designation by the Board of
Directors, the Chairperson of the Board of Directors, the Chief Executive Officer, the President, or the
Secretary, and stated in the notice of meeting or in a duly executed waiver of notice thereof. Notwithstanding
the foregoing, the Board of Directors may, in its sole discretion, determine that meetings of the stockholders
shall not be held at any place, but shall instead be held by means of remote communications, subject to the
guidelines and procedures that the Board of Directors may adopt from time to time. The Board of Directors
may postpone and reschedule any previously scheduled annual or special meeting of the stockholders.
2.2. Annual Meeting
The annual meeting of the stockholders shall be held at such date and time as shall be designated
from time to time by the Board of Directors and stated in the notice of the meeting, at which meeting the
stockholders shall elect, by a plurality vote of the shares present in person or by proxy at the annual meeting
and entitled to vote on the election of Directors, the Directors to succeed those Directors whose terms expire
at such meeting, and transact such other business as may properly be brought before the meeting. Except
as required by law or otherwise by these Bylaws, in all matters other than the election of Directors, the
affirmative vote of the majority of shares present in person or by proxy at the annual meeting and entitled
to vote on the subject matter shall be the act of the stockholders.
2.3. Special Meetings
Unless otherwise prescribed by law or by the certificate of incorporation of the Corporation, as
amended and restated from· time to time (the "Certificate of Incorporation"), special meetings of the
stockholders, for any purpose or purposes, may be called only by the Chairperson of the Board of Directors,
the Chief Executive Officer, the President, or the Secretary within 10 calendar days after receipt of the
written request of a majority of the total number of Directors that the Corporation would have if there were
no vacancies on the Board. Any such request by a majority of the Board of Directors must be sent to the
Chairperson and the Secretary and must state the purpose or purposes of the proposed meeting. The ability
of the stockholders to call a special meeting of the stockholders is hereby specifically denied. At a special
meeting of the stockholders, only such business shall be conducted as shall be specified in the notice of
meeting. Except as required by law or otherwise by these Bylaws, in all matters the affirmative vote of the
majority of shares present in person or by proxy at a special meeting and entitled to vote on the subject
matter shall be the act of the stockholders.
2.4. Notice of Meetings
Notice of every meeting of the stockholders, stating the place, if any, date and time thereof, the
means of remote communications, if any, by which stockholders and proxy holders may be deemed to be
present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes
for which the meeting is called, shall be given not less than 10, nor more than 60, calendar days before the
date of the meeting to each stockholder of record entitled to vote at such meeting, except as otherwise
provided herein or by law. Notice of every meeting of the stockholders shall be given by personal delivery
or by mail or by electronic communication to the extent permitted by the General Corporation Law of the
State of Delaware (the "DGCL''). If mailed, such notice shall be deemed given when deposited in the United
States mail, postage prepaid, directed to the stockholder at such stockholder's address as it appears on the
records of the Corporation. If electronically transmitted, such notice shall be deemed given when directed
to an electronic mail address at which the stockholder has consented to receive notice. Confirmation of
receipt shall not be required. When a meeting is adjourned to another place, date or time, written notice
need not be given of the adjourned meeting if the place, if any, date and time thereof, and the means of
remote communications, if any, by which stockholders and proxy holders may be deemed to be present in
person and vote at such adjourned meeting, are announced at the meeting at which the adjournment is taken;
provided, however, that if the adjournment is for more than 30 calendar days, or if after the adjournment a
new record date is fixed for the adjourned meeting, written notice of the place, if any, date and time thereof,
and the means of remote communications, if any, by which stockholders and proxy holders may be deemed
to be present in person and vote at such adjourned meeting, must be given in conformity herewith. At any
adjourned meeting, any business may be transacted which properly could have been transacted at the original
meeting. For purposes of these Bylaws, "electronic transmission" means any form of communication, not
directly involving the physical transmission of paper, that creates a record that may be retained, retrieved,
and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such recipient
through an automated process. Stockholders not entitled to vote shall not be entitled to receive notice of any
meetings except as otherwise provided by law.
2.5. Inspectors
The Board of Directors shall appoint, or if the Board of Directors has not made such appointment,
the Chairperson or the President shall appoint, one or more inspectors of election to act at any meeting of
the stockholders and make a written report thereof. One or more other persons may be designated as alternate
inspectors to replace any inspector who fails to act. If no inspector or alternate inspector is present, ready,
and willing to act at a meeting of the stockholders, the Chairperson of the meeting shall appoint one or more
inspectors to act at the meeting. Unless otherwise required by law, inspectors may be officers, employees,
or agents of the Corporation. Each inspector, 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 his or her ability. The inspector shall have the duties prescribed by law and shall take charge of
the polls and, when the vote is completed, shall make a certificate of the result of the vote taken and of such
other facts as may be required by law.
2.6. Quorum
Except as otherwise required by law or the Certificate of Incorporation, the holders of a majority
of the stock issued and outstanding and entitled to vote at a meeting of the stockholders, present in person
or represented by proxy, shall constitute a quorum at all meetings of the stockholders for -the transaction
of business thereat. A quorum, once established, shall not be broken by the withdrawal of enough votes to
leave less than a quorum. If, however, such quorum shall not be present or represented at any meeting of
the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall
have the power to adjourn the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might have been transacted at the
meeting as originally noticed, If the adjournment is for more than 30 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 entitled to vote at the meeting not less than 10 nor more than 60 days before the date of the
meeting.
2.7. List of Stockholders Entitled to Vote
The Secretary or other officer who has charge of the stock ledger of the Corporation shall prepare
and make, at least 10 calendar days before every meeting of the stockholders, a complete list of the
stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder. Such list shall be open
for examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours, for a period of at least 10 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 of the Corporation who is present.
2.8. Voting; Proxies
Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, any question
brought before any meeting of the stockholders shall be decided by the affirmative vote of the holders of a
majority of the total number of votes of the stock present in person or represented by proxy and entitled to
vote on such question. Each stockholder shall be entitled at every meeting of the stockholders to one vote
for each share of stock having voting power standing in the name of such stockholder on the books of the
Corporation on the record date for the meeting. Any stockholder entitled to vote may do so in person or
by his or her proxy appointed by an instrument in writing subscribed by such stockholder or by his
attorney thereunto authorized, delivered to the Secretary of the meeting; provided, however, that no proxy
shall be voted or acted upon after three years from its date, unless said proxy provides for a longer period.
Every proxy must be authorized in a manner permitted by Section 212 of the DGCL, or any successor
provision. Without affecting any vote previously taken, a stockholder may revoke any proxy that is not
irrevocable by attending the meeting and voting in person, by revoking the proxy by giving notice to the
Secretary, or by a later appointment of a proxy. The vote upon any question brought before a meeting of
the stockholders may be by voice vote, unless otherwise required by the DGCL, the Certificate of
Incorporation, or these Bylaws, or unless the Chairperson or the holders of a majority of the outstanding
shares of all classes of stock entitled to vote thereon present in person or by proxy at such meeting request
that votes shall be made by written ballot. Every vote taken by written ballot shall be counted by the
inspectors of election.
2.9. Order of Business
(a) The Chairperson, or such other officer of the Corporation designated by a majority of the Board
of Directors, shall call meetings of the stockholders to order and shall act as presiding officer thereof. The
Secretary of the Corporation shall act as Secretary of all meetings of the stockholders. In the absence or
disability of the Secretary, the Chairperson or the President shall appoint a person to act as Secretary at such
meetings. Unless otherwise determined by the Board of Directors prior to the meeting, the presiding officer
of the meeting of the stockholders shall also determine the order of business and have the authority in his
or her sole discretion to regulate the conduct of any such meeting, including without limitation by imposing
restrictions on the persons (other than stockholders of the Corporation or their duly appointed proxies) that
may attend any such stockholders' meeting, by ascertaining whether any stockholder or his or her proxy
may be excluded from any meeting of the stockholders based upon a determination by the presiding officer,
in his or her sole discretion, that any such person has unduly disrupted or is likely to disrupt the proceedings
thereat, and by determining the circumstances in which any person may make a statement or ask questions
at any meeting of the stockholders.
(b) At an annual meeting of the stockholders, no business (other than the nomination of candidates
for election as Directors of the Corporation which is governed by Section 3.3) may be transacted, other than
business that is either (i) specified in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board of Directors (or any duly authorized committee thereof), (ii) otherwise properly
brought before the annual meeting by or at the direction of the Board of Directors (or any duly authorized
committee thereof), or (iii) otherwise properly brought before the annual meeting by any stockholder of the
Company (A) who is a stockholder of record on the date of the giving of the notice provided for in these
Bylaws and on the record date for the determination of stockholders entitled to vote at such annual meeting,
and who (B) who complies with the notice procedures set forth in this Section 2.9.
(c) In addition to any other applicable requirements, for business to be properly brought before an
annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written
form to the Secretary of the Company. To be timely, a stockholder's notice to the Secretary must be delivered
to or mailed and received at the principal executive offices of the Company not less than 60 days nor more
than 90 days prior to the anniversary date of the immediately preceding annual meeting of the stockholders;
provided, however, that in the event that the annual meeting is called for a date that is not within 30 days
before or after such anniversary date, notice by the stockholder in order to be timely must be so received
not later than the close of business on the 10th day following the day on which such notice of the date of
the annual meeting was mailed or such public disclosure of the date of the annual meeting was made,
whichever first occurs.
(d) To be in proper written form, a stockholder's notice to the Secretary must set forth as to each
matter such stockholder proposes to bring before the annual meeting (i) a brief description of the
business desired to be brought before the annual meeting and the reasons for conducting such business at
the annual meeting, (ii) the name and record address of such stockholder, (iii) the description and
number of shares of stock or other securities of the Company which are beneficially or of record by
such stockholder, (iv) a description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with the proposal of such business by
such stockholder and any material interest of such stockholder in such business, and (v) a representation
that· such stockholder intends to appear in person or by proxy nt the annual meeting to bring such business
before the meeting.
(e) No business shall be conducted at the annual meeting of the stockholders except business
brought before the annual meeting in accordance with the procedures set forth in this Section 2.9, provided,
however, that, once business has been properly brought before the annual meeting in accordance with such
procedures, nothing in this Section 2.9 shall be deemed to preclude discussion by any stockholder of any
such business.
(f) At a special meeting of the stockholders, only such business may be conducted or considered
as is properly brought before the meeting. To be properly brought before a special meeting, business must
be (i) specified in the notice of the meeting (or any supplement thereto) given in accordance with Sections
2.3 or 2.4 hereof or (ii) otherwise properly brought before the meeting by the presiding officer or at the
direction of a majority of the Board of Directors.
(g) The determination of whether any business sought to be brought before any annual or special
meeting of the stockholders is properly brought before such meeting in accordance with this Section 2.9
shall be made by the Chairperson of such meeting. If the Chairperson determines that any business is not
properly brought before such meeting, he or she shall so declare to the meeting and any such business shall
not be conducted or considered.To bring stockholder nominations or other business before an annual
meeting of stockholders, a stockholder shall provide the Corporation a notice, at any time prior to the
commencement of the annual meeting of stockholders, identifying the stockholder presenting the
nomination or other business and setting forth (i) the names of the nominees for director (if any) and (ii)
the text of any other business proposed to be adopted by stockholders. No other information or notice
need be provided in order for stockholders to transact business at an annual meeting of stockholders. This
paragraph shall apply to nominations and business presented for stockholder action at the 2017 annual
meeting of stockholders of the Corporation and at each annual meeting thereafter held. For the avoidance
of doubt, no Bylaw provision in effect prior to the adoption of this paragraph shall apply to nominations
or business presented at the 2017 annual meeting of stockholders or any annual meeting held thereafter.
2.10. Participation by Means of Remote Communication
If authorized by the Board of Directors in its sole discretion, and subject to such guidelines and
procedures as the Board of Directors may adopt, stockholders and proxy holders not physically present at
a meeting of the stockholders may, by means of remote communication:
(a) participate in a meeting of the stockholders: and
(b) be deemed present in person and vote at a meeting of the stockholders whether such meeting is
to be held at a designated place or solely by means of remote communication, provided, that
(i) the Corporation shall implement reasonable measures to verify that each person
deemed present and permitted to vote at the meeting by means of remote communication is a
stockholder or proxy holder;
(ii) the Corporation shall implement reasonable measures to provide such stockholders and
proxy holders a reasonable opportunity to participate in the meeting and to vote on matters submitted
to the stockholders, including an opportunity to read or hear the proceedings of the meeting
substantially concurrently with such proceedings; and
(iii) if any stockholder or proxy holder votes or takes other action at the meeting by means
of remote communication, a record of such vote or other action shall be maintained by the Corporation.
3. DIRECTORS
3.1. Powers
The business and affairs of the Corporation shall be managed by or under the direction of the Board
of Directors, which may exercise all such powers of the Corporation and do all such lawful acts and things,
subject to any limitation set forth in the Certificate of Incorporation or as otherwise may be provided in
the DGCL.
3.2. Number
The numberBoard of Directors which shall constitute the whole Board shall not be fewer than one
nor more than nine. The initial Board shall consist of seven Directors. Thereafter, the numbernine
directors. The new directorship resulting from the adoption of Directorsthis paragraph shall be determined
by resolutionallocated to Class II of the Board of Directors.
3.3. Nomination of Directors; Election
(a) Stockholders may elect Directors at, and only at, an annual meeting of the stockholders, and
only persons who are nominated in accordance with this Section 3.3 shall be eligible for election as Directors
at a meeting of the stockholders.
(b) Nominations of persons for election as Directors may be made only at an annual meeting of
the stockholders (i) by or at the direction of the Board of Directors or a committee thereof or (ii) by any
stockholder who is a stockholder of record at the time of giving the notice provided for in this Section 3.3,
who is entitled to vote for the election of Directors at such annual meeting, and who makes the nomination
pursuant to timely notice in proper written form to the Secretary in compliance with the procedures set
forth in this Section 3.3.
(c) Except as otherwise provided by law, to be timely, a stockholder's notice with respect to
nominations of persons for election as Directors of the Corporation must be delivered to or mailed and
received at the principal executive offices of the Corporation not less than 60 days nor more than 90 days
prior to the anniversary date of the immediately preceding annual meeting of the stockholders; provided,
however, that in the event that the annual meeting is called for a date that is not within 30 days before or
after such anniversary date, notice by the stockholder in order to be timely must be so received not later
than the close of business on the 10th day following the day on which such notice of the date of the annual
meeting was mailed or such public disclosure of the date of the annual meeting was made, whichever first
occurs, and, in the case of a special meeting of the stockholders called for the purpose of electing directors,
not later than the close of business on the 10th day following the day on which notice of the date of the
special meeting was mailed or public disclosure of the date of the special meeting was made, whichever
first occurs.
(d) To be in proper written form, a stockholder's notice to the Secretary must set forth:
(i) as to each person who is not an incumbent Director of the Corporation whom the stockholder proposes
to nominate for election as a Director, (A) the name, age, business address and residence address of
such person; (B) the principal occupation or employment of such person; (C) the description and number
of shares of stock or other securities of the Corporation that are owned of record or beneficially by such
person; (D) the date or dates the shares or other securities were acquired and the investment intent of
each acquisition; (E) any other information relating to such person that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Section 14 under the Exchange Act (or any
comparable successor rule or regulation under the Exchange Act); and (F) any other information relating
to such person that the Board of Directors or any nominating committee of the Board of Directors
reviews in considering any person for nomination as a Director, as shall be provided by the Secretary
of the Corporation upon request;
(ii) as to the stockholder giving the notice, (A) the name and address of the stockholder, as they
appear on the Corporation's stock ledger, and, if different, the current name and address of the
stockholder; (B) the description and number of shares of stock or other securities of the Corporation
that are owned of record or beneficially by such stockholder as of the date of the stockholder's notice;
(C) a description of all arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to which the nomination
(s) are to be made by such stockholder; (D) a representation that such stockholder intends to appear
in person or by proxy at the meeting to nominate the persons named in its notice; and (E) any other
information relating to such stockholder that would be required to be disclosed in a proxy statement
or other filings required to be made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder.
Such notice must be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a Director if elected.
(e) No person shall be eligible for election as a Director of the Company unless nominated in
accordance with the procedures set forth in this Section 3.3. If the Chairperson of the meeting determines
that a nomination was not made in accordance with the foregoing procedures, the Chairperson shall declare
to the meeting that the nomination was defective and such defective nomination shall be disregarded.
Reserved.
3.4. Vacancies
Any vacancies in the Board of Directors for any reason,Vacant and any newly created directorships
resulting from any increase in the authorized number of Directors, may be filled only by either (i) a majority
of the Directorsdirectors then in office, though less than a quorum, or by a sole remaining Director, and each
Director so chosen shall hold office for a term(ii) the holders of a majority of the voting power of length equal
to the termcapital stock of the Director that he or she is replacing, until his or her successor is duly elected and
qualified or until his or her earlier resignation or removal. If there are no Directors in office, then an election
of Directors may be held in the manner provided by statuteCorporation outstanding and entitled to vote thereon.
3.5. Removal; Resignation
Any Director may be removed from office by the stockholders only for cause and only in the manner
provided in the Certificate of Incorporation and, if applicable, any amendment to this Section 3.5. Any
Director may resign at any time by giving notice in writing or by electronic transmission of his or her
resignation to the Chairperson or the Secretary. Unless otherwise stated in such notice of resignation, the
acceptance thereof shall not be necessary to make it effective, and such resignation shall take effect at the
time specified therein or, in the absence of such specification, it shall take effect upon the receipt thereof.
3.6. Meetings
3.6.1 Regular Meetings
Regular meetings of the Board of Directors may be held immediately after the annual meeting
of the stockholders and at such other time and place either within or without the State of Delaware as may
from time to time be determined by the Board of Directors.
3.6.2 Special Meetings
Special meetings of the Board of Directors may be called by the Chairperson, by the President
or by a majority of the Board of Directors, and notice shall be deemed given to each Director by whom
such notice is not waived if it is given 24 hours before the start of the meeting (i) in person, (ii) by facsimile
telecommunication, when directed to a number at which the Director has consented to receive notice, (iii)
by electronic mail, when directed to an electronic mail address at which the Director has consented to
receive notice, or (iv) by other similar medium of communication. Special meetings of the Board of Directors
may be held at such time and place either within or without the State of Delaware as is determined by the
Board of Directors or specified in the notice of any such meeting.
3.6.3 Meetings by Means of Conference Telephone
Members of the Board of Directors may participate in a meeting of the Board by means of
a conference telephone or similar communications equipment by means of which all participating Directors
can simultaneously hear each other during the meeting. A Director participating in a meeting by such means
is deemed to be present in person at the meeting.
3.6.4 Action Without Meeting
Any action required or permitted to be taken at any meeting of the Board of Directors may
be taken without a meeting if the action is taken by all members of the Board. The action must be evidenced
by one or more consents in writing or by electronic transmission describing the action taken, signed by
each Director, and delivered to the Corporation for inclusion in the minute book.
3.6.5 Waiver of Notice of Meeting
A Director may waive any notice required by statute, the Certificate of Incorporation, or
these Bylaws before or after the date and time stated in the notice. Except as set forth below, the waiver
must be in writing, signed by the Director entitled to the notice, or made by electronic transmission by the
Director entitled to the notice, and delivered to the Corporation for inclusion in the minute book.
Notwithstanding the foregoing, a Director's attendance at or participation in a meeting waives any required
notice to the Director of the meeting unless the Director at the beginning of the meeting objects to holding
the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken
at the meeting.
3.7. Quorum and Vote at Meetings
At all meetings of the Board, a quorum of the Board of Directors consists of a majority of the total
number of Directors prescribed pursuant to Section 3.2 of these Bylaws. The vote of a majority of the
Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except
as may be otherwise specifically provided by statute, the Certificate of Incorporation or these Bylaws.
3.8. Committees of Directors
The Board of Directors may designate one or more committees, each committee to consist of one
or more Directors. 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 any such committee. In the absence
or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors
of an alternate member to replace the absent or disqualified member, the member or members thereof present
at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the meeting in the place of any
absent or disqualified member. Any committee, to the extent permitted by law and provided in the resolution
establishing such committee, shall have and may exercise all the powers and authority of the Board of
Directors in the management of the business and affairs of the Corporation. Each committee shall keep
regular minutes and report to the Board of Directors when required.
3.9. Conflicts Committee; Resolution of Conflicts of Interest
3.9.1 Establishment of Conflicts Committee
The Corporation shall establish a Conflicts Committee which shall consist of two or more
members of the Board of Directors, each of whom (i) is not an officer or employee of the Corporation, (ii)
is not an officer, director or employee of any affiliate or subsidiary of the Corporation, (iii) is not a holder
of ownership interest in the Corporation other than common stock, and (iv) satisfies the independence
standards required of directors under the Exchange Act and the rules and regulations of the Securities
and Exchange Commission thereunder and by the NASDAQ Rules. Conflicts Committee members shall
be appointed by the Board of Directors. Each Conflicts Committee member shall serve at the pleasure of
the Board of Directors for such term as the Board of Directors may decide or until such Conflicts Committee
member is no longer a Board of Directors member.
3.9.2 Resolutions of Conflicts of Interest
Unless otherwise expressly provided for in these Bylaws, whenever a potential conflict of
interest exists or arises between the Corporation or any of its affiliates or subsidiaries, on the one hand,
and any third party, including any limited partnerships for which the Corporation may serve as general
partner, directly or indirectly, on the other, any resolution or course of action by the Corporation in respect
of such conflict of interest shall be permitted and shall not constitute a breach of any duty stated or implied
by contract, law or equity, if the resolution or course of action in respect of such conflict of interest is (i)
by a majority of the members of the Conflicts Committee acting in good faith, (ii) approved by the vote of
a majority of the stockholders, excluding the vote of any of the parties to the subject transaction, (iii) on
terms no less favorable to the Corporation than those generally being provided to or available from unrelated
third parties, or (iv) fair and reasonable to the Corporation, taking into account the totality of the relationships
between the parties involved (including other transactions that may be particularly favorable or advantageous
to the Corporation). The Corporation shall be authorized but not required in connection with its resolution
of such conflict of interest to seek approval of such resolution by the Conflicts Committee, and the
Corporation may also adopt a resolution or course of action that has not received approval of the Conflicts
Committee. If approval of the Conflicts Committee is sought, then it shall be presumed that, in making
its decision, the Conflicts Committee acted in good faith, and if approval of the Conflicts Committee
is not sought and the Board of Directors determines that the resolution or course of action taken with respect
to a conflict of interest satisfies either of the standards set forth in clauses (iii) or (iv) above, then it shall
be presumed that, in making its decision, the Board of Directors acted in good faith, and in any proceeding
brought by any party or by or on behalf of the stockholders or other parties challenging such approval, the
party bringing or prosecuting such proceeding shall have the burden of overcoming such presumption.
3.10. Compensation of Directors
The Board of Directors shall have the authority to fix the compensation of Directors. No
such payment shall preclude any Director from serving the Corporation in any other capacity and receiving
compensation therefor. Members of special or standing committees may be allowed like compensation for
service as committee members.
4. OFFICERS
4.1. Positions
The officers of the Corporation shall be a Chairperson, a President, a Secretary, and a Treasurer, and
such other officers as the Board of Directors (or an officer authorized by the Board of Directors) from time to
time may appoint, including one or more Vice Chairpersons, Executive Vice Presidents, Vice Presidents,
Assistant Secretaries, and Assistant Treasurers. Each such officer sha1l exercise such powers and perform such
duties as shall be set forth below and such other powers and duties as from time to time may be specified by
the Board of Directors or by any officer(s) authorized by the Board of Directors to prescribe the duties of such
other officers, Any number of offices may be held by the same person. As set forth below, each of the
Chairperson, President, and/or any Vice President may execute bonds, mortgages, and other contracts under
the seal of the Corporation, if required, except where required or permitted by law to be otherwise executed
and except where the execution thereof shall be expressly delegated by the Board of Directors to some other
officer or agent of the Corporation.
4.2. Chairperson
The Chairperson shall (when present) preside at all meetings of the Board of Directors and
stockholders, and shall ensure that all orders and resolutions of the Board of Directors and stockholders are
carried into effect. The Chairperson may execute bonds, mortgages, and other contracts, under the seal of
the Corporation, if required, except where required or permitted by law to be otherwise signed and executed
and except where the signing and execution thereof shall be expressly delegated by the Board of Directors
to some other officer or agent of the Corporation.
4.3. President
The President shall have full responsibility and authority for management of the day-to day
operations of the Corporation. The President may execute bonds, mortgages, and other contracts, under the
seal of the Corporation, if required, except where required or permitted by law to be otherwise signed and
executed and except where the signing and execution thereof shall be expressly delegated by the Board of
Directors to some other officer or agent of the Corporation.
4.4. Vice President
In the absence of the President or in the event of the President's inability or refusal to act, the Vice
President (or in the event there be more than one Vice President, the Vice Presidents in the order designated,
or in the absence of any designation, then in the order of their election) shall perform the duties of the
President, and when so acting shall have all the powers of, and be subject to all the restrictions upon, the
President.
4.5. Secretary
The Secretary shall have responsibility for preparation of minutes of meetings of the Board of
Directors and of the stockholders and for authenticating records of the Corporation. The Secretary shall
give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of
Directors. The Secretary or an Assistant Secretary may also attest all instruments signed by any other
officer of the Corporation.
4.6. Assistant Secretary
The Assistant Secretary, or if there be more than one, the Assistant Secretaries in the order
determined by the Board of Directors (or if there shall have been no such determination, then in the order
of their election), shall, in the absence of the Secretary or in the event of the Secretary's inability or refusal
to act, perform the duties and exercise the powers of the Secretary.
4.7. Treasurer
The Treasurer shall have responsibility for the custody of the corporate funds and securities and
shall see to it that full and accurate accounts of receipts and disbursements are kept in books belonging to
the Corporation. The Treasurer shall render to the Chairperson, the President, and the Board of Directors,
upon request, an account of all financial transactions and of the financial condition of the Corporation.
4.8. Assistant Treasurer
The Assistant Treasurer, or if there be more than one, the Assistant Treasurers in the order determined
by the Board of Directors (or if there shall have been no such determination, then in the order of their
election), shall, in the absence of the Treasurer or in the event of the Treasurer's inability or refusal to act,
perform the duties and exercise the powers of the Treasurer.
4.9. Term of Office
The officers of the Corporation shall hold office until their successors are chosen and qualified, or
until their earlier death, retirement, resignation or removal. Any officer may resign at any time upon written
notice to the Corporation. Any officer elected or appointed by the Board of Directors may be removed at
any time, with or without cause, by the affirmative vote of a majority of the Board of Directors.
4.10. Compensation
The compensation of officers of the Corporation shall be fixed by the Board of Directors or by any
officer(s) authorized by the Board of Directors to prescribe the compensation of such other officers.
4.11. Fidelity Bonds
The Corporation may secure the fidelity of any or all of its officers or agents by bond or otherwise.
5. CAPITAL STOCK
5.1. Certificates of Stock; Uncertificated Shares
The shares of the Corporation shall be represented by certificates, provided that the Board of
Directors may provide by resolution that some or all of any or all classes or series of the Corporation’s stock
shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the Corporation. Notwithstanding the adoption of such a resolution
by the Board of Directors, every holder of stock represented by certificates, and upon request every holder
of uncertificated shares, shall be entitled to have a certificate (representing the number of shares registered
in certificate form) signed in the name of the Corporation by the Chairperson, President or any Vice
President, and by the Treasurer, Secretary or any Assistant Treasurer or Assistant Secretary of the
Corporation. Any or all the signatures on the certificate may be made by facsimile. In case any officer,
transfer agent or registrar whose signature or facsimile signature appears on 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.
5.2. Lost Certificates
The Board of Directors, Chairperson, President or Secretary may direct a new certificate of stock
to be issued in place of any certificate theretofore issued by the Corporation and alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person claiming that the certificate
of stock has been lost, stolen or destroyed. When authorizing such issuance of a new certificate, the Board
or any such officer may, as a condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or such owner's legal representative, to advertise the same
in such manner as the Board or such officer shall require and/or to give the Corporation a bond or
indemnity, in such sum or on such terms and conditions as the Board or such officer may direct, as indemnity
against any claim that may be made against the Corporation on account of the certificate alleged to
have been lost, stolen or destroyed or on account of the issuance of such new certificate or uncertificated
shares.
5.3. Record Date
5.3.1. Actions by Stockholders
In order that the Corporation may determine the stockholders entitled to notice of or to vote
at any meeting of the stockholders, 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 60 days nor fewer than 10 days before the date of such
meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of the stockholders shall be 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 the stockholders shall apply to any adjournment of the meeting,
unless the Board of Directors fixes 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 record date shall not be more than 10 days after the date upon which the resolution fixing the
record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors,
the record date for determining stockholders entitled to consent to corporate action in writing without a
meeting, when no prior action by the Board of Directors is required by the DGCL, 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 in the manner prescribed by Section 213(b) of the DGCL. If no record date has been fixed
by the Board of Directors and prior action by the Board of Directors is required by the DGCL, 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.
5.3.2. Payments
In order that the Corporation may determine the stockholders entitled to receive payment of
any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful
action, the Board of Directors may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior
to such action. If no record date is fixed, the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board of Directors adopts the resolution relating
thereto.
5.4. Stockholders of Record
The Corporation shall be entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends, to receive notifications, to vote as such owner, and
to exercise all the rights and powers of an owner. The Corporation shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise may be provided by the DGCL.
6. INDEMNIFICATION; INSURANCE
6.1. Authorization of Indemnification
Each person who was or is a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative and whether by or in the right of the Corporation or otherwise (a "proceeding"), by reason of
the fact that he or she, or a person of whom he or she 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, officer, employee,
partner (limited or general) or agent of another corporation or of a partnership, joint venture, limited liability
company, trust or other enterprise, including service with respect to an employee benefit plan, shall be (and
shall be deemed to have a contractual right to be) indemnified and held harmless by the Corporation (and
any successor to the Corporation by merger or otherwise) to the fullest extent authorized by, and subject to
the conditions and (except as provided herein) procedures set forth in the DGCL, as the same exists or may
hereafter be amended (but any such amendment shall not be deemed to limit or prohibit the rights of
indemnification hereunder for past acts or omissions of any such person insofar as such amendment limits
or prohibits the indemnification rights that said law permitted the Corporation to provide prior to such
amendment), against all expenses, liabilities and losses (including attorneys' fees, judgments, fines, ERISA
taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such
person in connection therewith; provided, however, that the Corporation shall indemnify any such person
seeking indemnification in connection with a proceeding (or part thereof) initiated by such person (except
for a suit or action pursuant to Section 6.2 hereof) only if such proceeding (or part thereof) was authorized
by the Board of Directors of the Corporation. Persons who are not Directors or officers of the Corporation
and are not so serving at the request of the Corporation may be similarly indemnified in respect of such
service to the extent authorized at any time by the Board of Directors of the Corporation. The indemnification
conferred in this Section 6.1 also shall include the right to be paid by the Corporation (and such successor)
the expenses (including attorneys' fees) incurred in the defense of or other involvement in any such
proceeding in advance of its final disposition; provided, however, that, if and to the extent the DGCL requires,
the payment of such expenses (including attorneys' fees) incurred by a Director or officer in advance of the
final disposition of a 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 paid in advance if it shall ultimately be
determined that such Director or officer is not entitled to be indemnified under this Section 6.1 or otherwise;
and provided further, that such expenses incurred by other employees and agents may be so paid in advance
upon such terms and conditions, if any, as the Board of Directors deems appropriate.
6.2. Right of Claimant to Bring Action Against the Corporation
If a claim under Section 6.1 is not paid in full by the Corporation within 60 days after a written claim
has been received by the Corporation, the claimant may at any time thereafter bring an action against the
Corporation to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such action. It shall be a defense to any such
action (other than an action brought to enforce a claim for expenses incurred in connection with any
proceeding in advance of its final disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of conduct which make it permissible
under the DGCL for the Corporation to indemnify the claimant for the amount claimed or is otherwise not
entitled to indemnification under Section 6.1, but the burden of proving such defense shall be on the
Corporation, The failure of the Corporation (in the manner provided under the DGCL) to have made a
determination prior to or after the commencement of such action that indemnification of the claimant is
proper in the circumstances because he or she has met the applicable standard of conduct set forth in the
DGCL shall not be a defense to the action or create a presumption that the claimant has not met the applicable
standard of conduct. Unless otherwise specified in an agreement with the claimant, an actual determination
by the Corporation (in the manner provided under the DGCL) after the commencement of such action that
the claimant has not met such applicable standard of conduct shall not be a defense to the action, but shall
create a presumption that the claimant has not met the applicable standard of conduct.
6.3. Non-Exclusivity
The rights to indemnification and advance payment of expenses provided by Section 6.1 hereof shall
not be deemed exclusive of any other rights to which those seeking indemnification and advance payment of
expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested Directors or
otherwise, both as to action in his or her official capacity and as to action in another capacity while holding
such office.
6.4. Survival of Indemnification
The indemnification and advance payment of expenses and rights thereto provided by, or granted
pursuant to, Section 6.1 hereof shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a Director, officer, employee, partner or agent and shall inure to the benefit of the
personal representatives, heirs, executors and administrators of such person.
6.5. Insurance
The Corporation shall have power to purchase and maintain insurance on behalf of any person who is
or was a Director, officer, employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, partner limited or general) or agent of another corporation or of
a partnership, joint venture, limited liability company, trust or other enterprise, against any liability asserted
against such person or incurred by such person in any such capacity, or arising out of such person's status as
such, and related expenses, whether or not the Corporation would have the power to indemnify such person
against such liability under the provisions of the DGCL.
7. GENERAL PROVISIONS
7.1. Location and Reliance Upon Books and Records
The books and records of the Company may be kept at such place or places as the Board or the
respective officers in charge thereof may from time to time determine. The record books containing the
names and addresses of all stockholders, the number and class of shares of stock held by each and the dates
when they respectively became the owners of record thereof shall be kept by the Secretary as prescribed
in the Bylaws or by such officer or agent as shall be designated by the Board. Each Director, each member
of a committee designated by the Board, and each officer of the Company shall, in the performance of his
or her duties, be fully protected in relying in good faith upon the records of the Company and upon such
information, opinions, reports, or statements presented to the Company by any of the Company's officers
or employees, or committees of the Board, or by any other person or entity as to matters the Director,
committee member or officer believes are within such other person's professional or expert competence and
who has been selected with reasonable care by or on behalf of the Company.
7.2. Dividends
The Board of Directors may declare dividends upon the capital stock of the Corporation, subject to
the provisions of the Certificate of Incorporation and the laws of the State of Delaware.
7.3. Reserves
The Directors of the Corporation may set apart, out of the funds of the Corporation available for
dividends, a reserve or reserves for any proper purpose and may abolish any such reserve.
7.4. Execution of Instruments
All checks, drafts or other orders for the payment of money, and promissory notes of the Corporation
shall be signed by such officer or officers or such other person or persons as the Board of Directors may from
time to time designate.
7.5 Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
7.6. Seal
The corporate seal shall be in such form as the Board of Directors shall approve. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or otherwise reproduced.
7.7. Amendment
Except as otherwise provided by law or by the Certificate of Incorporation or these Bylaws, these
Bylaws or any of them may be amended in any respect or repealed at any time, either (a) at any meeting of
the stockholders, provided that any amendment or supplement proposed to be acted upon at any such meeting
has been described or referred to in the notice of such meeting or (b) at any meeting of the Board of Directors,
provided that no amendment adopted by the Board of Directors may vary or conflict with any amendment
adopted by the stockholders in accordance with the Certificate of Incorporation and these Bylaws.
Notwithstanding the foregoing and anything contained in these Bylaws to the contrary, the Bylaws may not
be amended or repealed by the stockholders, and no provision inconsistent therewith may be adopted by the
stockholders, without the affirmative vote of the holders of at least 80% of the outstanding Common Stock,
voting together as a single class.
The foregoing Amended and Restated Bylaws were
adopted by the Board of Directors as of October 3, 2011May 9, 2017.
Eric R. Waller
Secretary