Old Second Bancorp (OSBC) 10-Q2020 Q3 Quarterly report

Exhibit 3.1

BYLAWS
OF
OLD SECOND BANCORP, INC.

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As amended and restated through November 4, 2020

ARTICLE I

OFFICES

Section 1.1. Registered Office. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware, and the name of the registered agent in charge thereof shall be Corporation Service Company.

Section 1.2. Other Offices. The corporation may also have offices at such other places as the Board of Directors may from time to time determine or the business of the corporation may require.

ARTICLE II
STOCKHOLDERS’ MEETINGS

Section 2.1. Place of Meetings. All meetings of the stockholders for the election of directors shall be held at the offices of the corporation in Aurora, Illinois, or as the Board of Directors may designate from time to time and as designated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such place as shall be stated in the notice of the meeting, or in a duly executed waiver thereof.

Section 2.2. Annual Meetings. Unless otherwise directed by the Board of Directors, or the Chairman of the Board, an annual meeting of the stockholders shall be held on the third Tuesday of May in each year, but if a legal holiday, then on the next regular business day following, at which the stockholders shall elect, by a plurality vote, directors to serve on the Board of Directors, and transact such other business as may properly be brought before the meeting pursuant to Section 2.4. If the election of directors shall not be held on the day designated for any annual meeting, or at any adjournment thereof, the Board of Directors shall cause the election to be held at a special meeting of the stockholders as soon thereafter as convenient. At such meeting, the stockholders may elect directors and transact other business with the same force and effect as at an annual meeting.

Section 2.3. Notice of Meeting. Written notice of the annual meeting shall be served upon or mailed to each stockholder entitled to vote thereat at such address as appears on the books of the corporation, no less than ten nor more than fifty days before such meeting.

Section 2.4. New Business at Annual Meeting.

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(A)At the annual meetings, directors shall be elected and any other business properly proposed and filed with the Secretary of the corporation as provided in these Bylaws may be transacted which is within the powers of the stockholders.  The proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders (1) pursuant to the corporation’s notice of meeting, (2) by or at the direction of the Board of Directors or the Chairman of the Board or (3) (x) other than with respect to nominations for the election of directors, by any stockholder of the corporation who (i) was a stockholder of record at the time of giving of notice provided for in this Article II, Section 2.4 and at the time of the annual meeting, (ii) is entitled to vote at the meeting and (iii) complies with the notice procedures and other requirements set forth in this Article II, Section 2.4 (including, without limitation, by providing any updates or supplements at the times and in the forms required by Article II, Section 6(C)) as to such business, and (y) with respect to nominations for the election of directors, by any stockholder of the corporation who complies with the notice procedures and other requirements set forth in Article II, Section 2.5.  The foregoing clause (3) shall be the exclusive means for a stockholder to submit other business (other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and included in the corporation’s notice of meeting) before an annual meeting of stockholders.

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(B)Without qualification, for any business to be properly brought before an annual meeting by a stockholder pursuant to Article II, Section 2.4(A)(3), the stockholder must have given timely notice thereof in writing to the Secretary of the corporation and such business must otherwise be a proper matter for stockholder action.  Other than with respect to nominations for the election of directors, to be timely a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the corporation not earlier than the close of business on the one hundred twentieth (120th) day

and not later than the close of business on the ninetieth (90th) day in advance of the first anniversary date (month and day) of the previous year’s annual meeting; provided, however, that in the event that the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to the date of such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to the date of such annual meeting or, if the first public announcement of the date of such annual meeting is less than one hundred (100) days prior to the date of such annual meeting, then the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the corporation.  With respect to nominations for the election of directors, to be timely a stockholder’s notice shall be delivered in accordance with the notice procedures set forth in Article II, Section 2.5 of these Bylaws.  In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above.  For purposes of this Article II, Section 2.4, a “public announcement” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

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With respect to nominations for the election of directors, to be in proper form, a stockholder’s notice to the Secretary must comply with the requirements of Article II, Section 2.5. Other than with respect to nominations for the election of directors, to be in proper form, a stockholder’s notice to the Secretary must:

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(1)set forth, as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf proposal is made (i) the name and address of such stockholder, as they appear on the corporation’s books, and of such beneficial owner, if any, (ii) (a) the class or series and number of shares of the corporation which are, directly or indirectly, owned beneficially and of record by such stockholder and such beneficial owner, (b) any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the corporation or with a value derived in whole or in part from the value of any class or series of shares of the corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital stock of the corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially by such stockholder or such beneficial owner and any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the corporation, (b) any proxy, contract, arrangement, understanding, or relationship pursuant to which such stockholder or such beneficial owner has a right to vote any shares of any security of the corporation, (d) any short interest in any security of the corporation (for purposes of this Article II, Section 2.4(B) a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any decrease in the value of the subject security), (e) any rights to dividends on the shares of the corporation owned beneficially by such stockholder or such beneficial owner that are separated or separable from the underlying shares of the corporation, (f) any proportionate interest in shares of the corporation or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder or such beneficial owner is a general partner or, directly or indirectly, beneficially owns an interest in a general partner, (g) any performance-related fees (other than an asset-based fee) that such stockholder or such beneficial owner is entitled to based on any increase or decrease in the value of shares of the corporation or Derivative Instruments, if any, as of the date of such notice, including without limitation any such interests held by members of such stockholder’s or such beneficial owner’s immediate family sharing the same household (which information shall be supplemented by such stockholder and beneficial owner, if any, not later than ten (10) days after the record date for the meeting to disclose such ownership as of the record date), (h) any pending or threatened legal proceeding in which such stockholder or such beneficial owner is a party or participant involving the corporation or any of its officers or directors, or any affiliate of the corporation, (i) any other material relationship between such stockholder or such beneficial owner, on the one hand, and the corporation, any affiliate of the corporation or any principal competitor of the corporation, on the other hand, and (j) to the extent known to such stockholder or such beneficial owner, the name(s) of any other stockholder(s) of the corporation (whether holders of record of beneficial owners) that support the business that the stockholder proposes to bring before the meeting, (iii) a representation of such stockholder and such beneficial owner, if any, that such person (or a qualified representative thereof) intends to appear in person at the meeting, and (iv) any other information relating to such stockholder and beneficial owner, if any, 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 the proposal pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder (the disclosures to be made pursuant to the foregoing clauses (i), (ii), (iii) and (iv) are referred to herein as the “Stockholder Information”); and

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(2)set forth a brief description of the business desired to be brought before the meeting, the reasons for conducting such business at the meeting and any material interest of such stockholder and beneficial owner, if any, in

such business and a description of all agreements, arrangements and understandings between such stockholder and beneficial owner, if any, and any other person or persons (including their names) in connection with the proposal of such business by such stockholder.

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(C)Other than with respect to nominations for the election of directors, a stockholder giving the notice shall update and supplement its notice, if necessary, so that the information provided or required to be provided in such notice pursuant to Article II, Section 6(B) shall be true and correct as of the record date for notice of the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed to and received by, the Secretary at the principal executive offices of the corporation not later than five (5) business days after the record date for notice of the meeting (in the case of the update and supplement required to be made as of such record date), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof); provided, that this Article II, Section 6(C) shall not permit any such stockholder(s) to change any proposed business or add any proposed business.

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 Section 2.5. Nominations For Director. The Board of Directors or any stockholder entitled to vote in the election of directors may make nominations for the election of directors.  Such nominations, other than those made by or on behalf of the existing Board of Directors of the corporation, shall be made in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the corporation not fewer than fourteen (14) days nor more than sixty (60) days prior to any meeting of the stockholders called for the election of directors; provided, however, that, if notice of the meeting is given to stockholders less than twenty-one (21) days prior to the date of the meeting, such written nomination shall be delivered or mailed, as prescribed, to the Secretary of the corporation not later than the close of business on the seventh (7^th) day following the day on which notice of the meeting was mailed to stockholders. Each written nomination shall set forth (A) the name, age, business address and, if known, residence address of each nominee proposed in such written nomination, (B) the principal occupation or employment of each such nominee for the past five years and (C) the number of shares of stock of the corporation beneficially owned by each such nominee and by the nominating stockholder. The Chairman of the meeting may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.

Section 2.6. Stockholders’ List. At least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at said meeting, arranged in alphabetical order, with the address of each and the number of voting shares held by each, shall be prepared by the Secretary. Such list shall be open at the place where the meeting is to be held for said ten (10) days or on a reasonably accessible electronic network if the information required to gain access to such list was provided with the notice of the meeting, to the examination of any stockholder for any purpose germane to the meeting, and shall be produced and kept at the time and place of the meeting during the whole time thereof, and subject to the inspection of any stockholder who may be present.

Section 2.7. Special Meetings. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Certificate of Incorporation, may be called by the Chairman of the Board, President or Secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of stockholders owning at least 50% of the number of shares of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting.

 Section 2.8. Notice of Special Meetings. Written notice of a special meeting of stockholders, stating the time, place, record date for determining the stockholders entitled to vote at such meeting and the object of the meeting, shall be served upon or mailed to each stockholder entitled to vote thereat at such address as appears on the books of the corporation, no less than ten (10) nor more than sixty (60) days before such meeting.

Section 2.9. Quorum. The holders of a majority of the shares issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall be requisite and shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute, by the Certificate of Incorporation, or by these bylaws. 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 that might have been transacted at the meeting as originally notified.

Section 2.10. Voting. When a quorum is present at any meeting, the vote of the holders of a majority of the shares

having voting power present in person or represented by proxy shall decide the election of the directors; provided that if the number of nominees exceeds the number of directors to be elected at such meeting, then a plurality of the shares having voting power present in person or represented by proxy shall decide the election of the directors. When a quorum is present at any meeting, the vote of the holders of a majority of the shares having voting power present in person or represented by proxy shall decide all other questions brought before such meeting, unless the question is one upon which by express provision of the statutes or of the Certificate of Incorporation or of these bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question. Each stockholder shall have one vote for each share of stock having voting power, registered in his name on the books of the corporation, except as otherwise provided in the Certificate of Incorporation.

Section 2.11. Proxies. At any meeting of the stockholders, every stockholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date not more than three years prior to said meeting, unless said instrument provides for a longer period.

Section 2.12. Voting by Ballot. Voting on any question or in any election may be viva voce unless the presiding officer shall order, or any stockholder shall request, that voting be by ballot.

Section 2.13. Conduct of Meetings. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of the stockholders as it shall deem appropriate. The Chairman of the Board, or in his absence the Vice-Chairman of the Board, or in his absence the President, and in their absence any person chosen by the stockholders present, shall call the meeting of the stockholders to order and shall act as chairman of the meeting. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairman of any meeting of the stockholders shall have the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of the chairman, are appropriate for the proper conduct of the meeting. The Secretary of the corporation shall act as secretary of all meetings of the stockholders, but, in the absence of the Secretary, the presiding officer may appoint any other person to act as secretary of the meeting.

Section 2.14. Inspectors. At any meeting of stockholders, the chairman of the meeting may, or, upon the request of any stockholder shall, appoint one or more persons as inspectors for such meeting to ascertain and report the number of shares represented at the meeting based upon their determination of the validity and effect of proxies, count all votes and report the results and do such other acts as are proper to conduct the election and voting with impartiality and fairness to all stockholders. Each report of an inspector shall be in writing and signed by him or by a majority of them if there be more than one inspector acting at such meeting, such majority report being the report of the inspectors in such case. The report of the inspector or inspectors on the number of shares represented at the meeting and the results of the voting shall be prima facie evidence thereof and shall be accepted by the chairman of the meeting for the conduct thereof, unless he shall be otherwise advised by counsel for the corporation.

ARTICLE III
DIRECTORS

Section 3.1. Number and Classes of Directors. The business and property of the corporation shall be managed and controlled by its Board of Directors, not less than five (5) nor more than twenty-five (25) in number, as  from time to time shall be elected by its stockholders. The directors shall be divided into three classes: Class I, Class II and Class III. Such classes shall be as nearly equal in number as possible. The term of office of the initial Class I directors shall expire at the annual meeting of stockholders in 1987; the term of office of the initial Class II directors shall expire at the annual meeting of stockholders in 1988; and the term of office of the initial Class III directors shall expire at the annual meeting of stockholders in 1989; or thereafter when their respective successors in each case are elected and qualified. At each annual election held after 1986, the directors chosen to succeed those whose terms then expire shall be identified as being of the same class as the directors they succeed and shall be elected for a term expiring at the third succeeding annual meeting or thereafter when their respective successors in each case are elected and qualified. Any director elected to a particular class by the stockholders or directors shall be eligible, upon resignation, to be elected to a different class.

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Section 3.2. Qualifying Shares. Every director must own in his or her own right, free from encumbrance, during the full term of his or her directorship, shares of the capital stock of the corporation, in an amount equal to the greater of any one of the following: (a) aggregate par value of $1,000, (b) aggregate stockholder’s equity of $1,000; or (c) aggregate fair market value of $1,000. Determination of the values referred to in the immediately preceding sentence may be based on the value of the stock on the date it was purchased or on the date the person became a director, whichever value is greater.

Section 3.3. Place of Meeting. The directors may hold their meetings outside of the state of incorporation, at the

office of the corporation or at such other places as they may from time to time determine, or as shall be fixed in the respective notices or waivers of notice of such meetings.

Section 3.4. Vacancies. A director may resign at any time by filing his written resignation, including by electronic transmission, with the Secretary of the corporation. A director, whether elected by the stockholders or appointed by the directors, may be removed from office only for cause and by the affirmative vote of the holders of shares having at least 66 2/3% of the voting power of all outstanding capital stock of the corporation entitled to vote thereon. If the office of any director or directors becomes vacant by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, or a new directorship is created, a majority of the directors then in office, though less than a quorum, or a sole remaining director shall choose a successor or successors, to fill the newly created directorship, and the director or directors so chosen shall hold office until the next election of the class for which such director or directors shall have been chosen, and until his, her or their successor or successors shall be duly elected and qualified. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least 10% of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office.

Section 3.5. General Powers. The property and business of the corporation shall be managed by its Board of Directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these bylaws directed or required to be exercised or done by the stockholders.

Section 3.6. Compensation of Directors. Directors, as such, may receive such stated salary for their services and/or such fixed sums and expenses of attendance for attendance at each regular or special meeting of the Board of Directors as may be established by resolution of the Board of Directors; provided that nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed compensation for attending committee meetings.

Section 3.7. Annual Meeting and Regular Meetings. Immediately following the annual election of directors, the newly elected directors and the continuing directors shall meet for the purpose of organization, the election of officers and the transaction of such of the business, at the same place as shall have been fixed for the annual meeting of the stockholders, and, if a majority of the directors be present at such time and place, no prior notice of such meeting shall be required to be given to the directors. Regular meetings of the directors shall be held at the office of the corporation on the third Tuesday of each calendar month in each year at 1:00 o’clock in the afternoon, but if a legal holiday, then at the same time on the next regular business day following, or at such time and place as the Board of Directors may determine from time to time; provided however that the Board of Directors may meet less often than  monthly as long as it has created a process for considering and taking action on matters that arise between regular meetings. No notice of regular meetings shall be required.

Section 3.8. Special Meetings. Special meetings of the Board of Directors may be held at any time on the call of the Chairman of the Board or President or at the request in writing of any two directors. Notice of any such meeting, unless waived, shall be given by mail or by means of electronic transmission to each director, at his address as the same appears on the records of the corporation, not less than one day prior to the day on which such meeting is to be held if such notice is by electronic transmission, and not less than three days prior to the day on which the meeting is to be held if such notice is by mail. If the Secretary shall fail or refuse to give such notice, then the notice may be given by the officer or any one of the directors making the call. Any such meeting may be held at such place as the Board of Directors may fix from time to time or as may be specified or fixed in such notice or waiver thereof. Any meeting of the Board of Directors shall be a legal meeting without any notice thereof having been given, if all the directors shall be present thereat, and no notice of a meeting shall be required to be given to any director who shall attend such meeting.

Section 3.9. Informal Action by Directors. Any action required to be taken at a meeting of the Board of Directors, or any other action that may be taken at a meeting of the Board of Directors or any committee thereof, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by, or consented to by electronic transmission by, all of the directors constituting the Board of Directors and entitled to vote with respect to the subject matter thereof.

Section 3.10. Presence at Meetings. Members of the Board of Directors, or of any committee thereof, may participate in a meeting of the Board of Directors or of such committee 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 subsection shall constitute presence in person at such meeting.

Section 3.11. Quorum and Manner of Acting. Except as otherwise provided in these bylaws, a majority of the total number of directors as at the time specified by the bylaws shall constitute a quorum at any regular or special meeting of the Board of Directors. Except as otherwise provided by law or by the Certificate of Incorporation, as amended, or by these bylaws, the act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present may adjourn the meeting from time to time until a quorum be had. Notice of any adjourned meeting need not be given.

Section 3.12. Waiver of Notice and Presumption of Assent. Whenever notice to directors is required by applicable law, the Certificate of Incorporation or these bylaws, a waiver thereof, in writing signed by, or sent by electronic transmission by, the director entitled to the notice, whether before or after such notice is required, shall be deemed equivalent to notice. A director of the corporation who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be conclusively deemed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action.

Section 3.13 Committees of the Board of Directors. The Board of Directors may designate one or more committees, each committee to consist of one or more directors of the corporation. Any such committee, to the extent permitted by applicable law, shall have and may exercise all of the powers and authority of the Board of Directors in the management of the business and affairs of the corporation. Unless the Board of Directors provides otherwise, at all meetings of such committees, a majority of the then authorized members of the committee shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting at which there is a quorum shall be the act of the committee.

Section 3.14 Chairman and Vice-Chairman of the Board. The Chairman shall preside at all meetings of the stockholders and of the Board of Directors. The Chairman may sign, with the Secretary or any other proper officer of the corporation thereunto authorized by the Board of Directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts or other instruments whose execution has been authorized by the Board of Directors, except in cases where the signing and execution thereof shall be expressly delegated by the Board of Directors or by these by-laws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of Chairman of the Board and such other duties as may be prescribed by the Board of Directors from time to time. The Chairman shall preside at all meetings of the stockholders. If appointed by the Board of Directors, the Vice-Chairman of the Board shall, in the absence of the Chairman of the Board, assume the duties and responsibilities of the Chairman of the Board.

Section 3.15 Honorary or Advisory Directors. Honorary or advisory members of the Board of Directors (“Senior Directors”), without voting power or power of final decision in matters concerning the business of the corporation, may be appointed by resolution of a majority of the full Board of Directors, or by resolution of shareholders, at any annual or special meeting. No individual shall be eligible for election as a Senior Director if such individual is not then serving as a director of Old Second National Bank pursuant to the terms of Old Second National Bank’s Articles of Association and Bylaws, each as amended from time to time. Senior Directors shall not be counted for purposes of determining the number of directors of the corporation or the presence of a quorum in connection with any action by the Board of Directors, and shall not be required to own qualifying shares. Any listing of Senior Directors must distinguish between them and the corporation’s Board of Directors or indicate their advisory status.

ARTICLE IV

OFFICERS

Section 4.1. Number. The executive officer of the corporation elected by the directors shall be a President who shall also be a member of the Board of Directors. The directors may also elect a Vice President or one or more additional vice presidents or other additional officers, all as the directors shall determine. Any two or more offices may be held by the same individual.

Section 4.2. Election, Term of Office and Eligibility. The executive officers of the corporation shall be elected annually by the Board of Directors at its annual meeting; provided that new or additional officers may be elected at any meeting of the Board of Directors. Each officer, except such officers as may be appointed in accordance with the provisions of Section 4.3, shall hold office until the next annual election of officers or until his or her death, resignation or removal prior thereto. None of the officers need be members of the Board of Directors.

Section 4.3. Subordinate Officers. The Board of Directors shall appoint a Secretary and may appoint an auditor and Assistant Secretaries, controllers and other officers and such agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors.

Section 4.4. Vacancies. A vacancy in any office because of death, resignation, removal, disqualification or otherwise may be filled for the unexpired portion of the term by the vote of a majority of the whole Board of Directors.

Section 4.5. Removal. The elected officers may be removed at any time, either with or without cause, but only by the affirmative vote of the majority of the total number of directors as at the time specified by the bylaws. Any subordinate officer appointed pursuant to Section 4.3 may be removed at any time, either with or without cause, by the majority vote of the directors present at any meeting of the Board of Directors or by any committee or any officer senior in status to the subordinate officer being removed.

Section 4.6. President. The President shall assist the Chief Executive Officer in the general management of the business and affairs of the corporation, and shall perform such other duties as the Chairman of the Board of Directors shall prescribe.

Section 4.7. Chief Executive Officer. The Board of Directors shall appoint a Chief Executive Officer of the corporation who shall in general supervise and control all of the business and affairs of the corporation.

Section 4.8. Chief Financial Officer. The Board of Directors may designate one of the executive officers of the corporation to be the Chief Financial Officer of the corporation who shall be responsible for the accounting records, the preparation of financial statements and management control reports, administration of budgets and forecasting, and systems and procedures for the entire corporation and who further shall perform such other duties as from time to time may be assigned to him by the Board of Directors or the Chief Executive Officer of the corporation. The Chief Financial Officer shall have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for monies due and payable to the corporation from any source whatsoever, and deposit all such monies in the name of the corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of Section 8.2 of these bylaws.

Section 4.9. The Vice Presidents. The elected Vice Presidents shall perform such duties as from time to time may be assigned to them by the Board of Directors or by the Chief Executive Officer of the corporation.

Section 4.10. The Secretary. The Secretary, or any assistant secretary or other officer designated by the Secretary, shall:

Section 4.11. Assistant Secretaries. The Assistant Secretaries, in general, shall perform such duties as shall be assigned to them by the Secretary, respectively, or by the Board of Directors or by the Chief Executive Officer of the corporation.

Section 4.12. Salaries. The salaries of the elected executive officers shall be fixed from time to time by the Board or Directors, and no officer shall be prevented from receiving such salary by reason of the fact that he is also a  director of the corporation. The salaries of all other officers of the corporation shall be reviewed by the Board of Directors.

Section 4.13. Bonds. If the Board of Directors or the Chief Executive Officer shall so require, any officer or agent of the corporation shall give bond to the corporation, in such amount and with such surety as the Board of Directors or the Chief Executive Officer, as the case may be, may deem sufficient, conditioned upon the faithful performance of their respective duties and offices.

Section 4.14. Delegation of Duties. In case of the absence of any officer of the corporation or for any other reason that may seem sufficient to the Board of Directors, the Board of Directors may, for the time being, delegate his powers and duties, or any of them, to any other officer or to any director. The Board of Directors may appoint one or more assistant vice presidents, one or more assistant secretaries and such other officers and attorneys in fact as from time to time may appear to the Board of Directors to be required or desirable to transact the business of the corporation. Such officers shall respectively exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon, or assigned to, them by the Board of Directors, the Chief Executive Officer, or the President. The Board of Directors may authorize an officer to appoint one or more officers or assistant officers.

ARTICLE V

SHARES OF STOCK

Section 5.1. Regulation. Subject to the terms of any contract of the corporation, the Board of Directors may make such rules and regulations as it may deem expedient concerning the issue, transfer, and registration of certificates for shares of the stock of the corporation, including the issue of new certificates for lost, stolen or destroyed certificates, and including the appointment of transfer agents and registrars.

Section 5.2. Stock Certificates. The shares of stock of the corporation shall be represented by a certificate, unless and until the Board of Directors of the corporation adopts a resolution permitting shares to be uncertificated. Notwithstanding the adoption of any such resolution providing for uncertificated shares, every holder of capital stock of the corporation theretofore represented by certificates and, upon request, every holder of uncertificated shares, shall be entitled to have a certificate for shares of capital stock of the corporation signed by, or in the name of the corporation by the Chairman, any Vice Chairman, the President or any Vice President, and by the secretary or any assistant secretary, the treasurer or any assistant treasurer, provided that such signatures may be facsimiles, certifying the number of shares owned by such stockholder in the corporation.

Section 5.3. Restriction on Transfer of Securities.

Section 5.4. Transfer of Shares. Subject to the restrictions permitted by Section 5.3, stock of the corporation shall be transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of the corporation, and in the case of certificated shares of stock, only by the person named in the certificate or by such person’s attorney lawfully constituted in writing and upon the surrender of the certificate therefor, properly endorsed for transfer and payment of all necessary transfer taxes; or, in the case of uncertificated shares of stock, upon receipt of proper transfer instructions from the registered holder of the shares or by such person’s attorney lawfully constituted in writing, and upon payment of all necessary transfer taxes and compliance with appropriate procedures for transferring shares in uncertificated form; provided, however, that such surrender and endorsement, compliance or payment of taxes shall not be required in any case in which the officers of the corporation shall determine to waive such requirement. No transfer of stock shall be valid as against the corporation for any purpose until it shall have been entered in the stock records of the corporation by an entry showing from and to whom transferred.

Section 5.5. 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, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or 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, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action.

If no record date is fixed:

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.

Section 5.6. Lost Certificate. Any stockholder claiming that a certificate representing shares of stock has been lost, stolen or destroyed, may make an affidavit or affirmation of the fact and if the Board of Directors so requires, advertise the same in a manner designated by the Board of Directors, and give the corporation a bond of indemnity in form and with security for an amount satisfactory to the Board of Directors, but not exceeding double the value of the shares represented by said certificate; whereupon a new certificate may be issued of the same tenor and representing the same number, class and/or series of shares as were represented by the certificate alleged to have been lost, stolen or destroyed.

ARTICLE VI
BOOKS AND RECORDS

Section 6.1. Location. The books, accounts and records of the corporation maintained in the regular course of its business may be kept at such place or places within or without the state of incorporation as the Board of Directors may from time to time determine. The books, accounts and records may be maintained on any information storage device or method; provided that the records so kept can be converted into clearly legible paper form within a reasonable time.

Section 6.2. Inspection. The books, accounts and records of the corporation shall be open to inspection by any member of the Board of Directors at all times; and open to inspection by the stockholders, upon reasonable notice, at such times, and subject to such regulations, as the Board of Directors may prescribe, except as otherwise provided by statute.

Section 6.3. Corporate Seal. The corporate seal shall contain two concentric circles between which shall be the name of the corporation and the word “Delaware” and in the center shall be inscribed the words “Corporate Seal.”

ARTICLE VII

DIVIDENDS AND RESERVES

Section 7.1. Dividends. Subject to the provisions of the Certificate of Incorporation, as amended, and other lawful commitments of the corporation, dividends upon the shares of the capital stock of the corporation may be declared by the Board of Directors out of the surplus of the corporation or, in case there shall be no such surplus, out of the net profits of the corporation for the fiscal year in which the dividend is declared and/or the preceding fiscal year, at any regular or special meeting of the Board of Directors. However, no dividend shall be declared or paid which would impair the capital of the corporation.

Section 7.2. Reserves. The Board of Directors of the corporation may set apart, out of any of the funds of the corporation available for dividends, a reserve or reserves for any proper purpose and may abolish any such reserve.

ARTICLE VIII

MISCELLANEOUS PROVISIONS

Section 8.1. Fiscal Year. The fiscal year of the corporation shall end on the 31st day of December in each year.

Section 8.2. Depositories. The Board of Directors or an officer designated by the Board of Directors shall appoint banks, trust companies, or other depositories in which shall be deposited from time to time the money or securities of the corporation.

Section 8.3. Checks, Drafts and Notes. All checks, drafts or other orders for the payment of money, and all notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers or agent or agents as shall from time to time be designated by resolution of the Board of Directors or by an officer appointed by the Board of Directors.

Section 8.4. Contracts and Other Instruments. Except as otherwise provided in the bylaws, the Board of Directors may authorize any officer, agent or agents to enter into any contract or execute and deliver any instrument in the name and on behalf of the corporation, and such authority may be general or confined in specific instances.

Section 8.5. Notices. Whenever under the provisions of the statutes or of the Certificate of Incorporation or of these bylaws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, by electronic mail, by depositing the same in a post office or letter box, in a postpaid sealed wrapper, or by delivery to a telegraph company, addressed to such director or stockholder at such address as appears on the books of the corporation, or, in default of such address, to such director or stockholder at the General Post Office in the city of Dover, Delaware, and such notice shall be deemed to be given at the time when the same shall be thus mailed or delivered to a telegraph company.

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Section 8.6. Waivers of Notice. Whenever any notice is required to be given under the provisions of the statutes or of the Certificate of Incorporation or of these bylaws, a waiver thereof in writing signed by the person or persons entitled to said 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.

Section 8.7. Stock in Other Corporations. Any shares of stock in any other corporation that may from time to time be held by this corporation may be represented and voted at any meeting of stockholders of such corporation by the majority of the Board of Directors of this corporation, or by persons thereunto authorized by the Board of Directors, or by any proxy designated by written instrument of appointment executed in the name of the Board of Directors. If any such shares of stock are neither so represented nor have persons been duly authorized or a proxy designated by the Board of Directors, then the Chairman of the Board, or in his absence, the President, of this corporation may vote at any meeting of the stockholders of such other corporation as the Chairman of the Board or President, as the case may be, deems to be in the best interests of this corporation. Shares of stock belonging to the corporation need not stand in the name of the corporation, but may be held for the benefit of the corporation in the individual name of the Treasurer or of any other nominee designated for that purpose by the Board of Directors. Certificates for shares so held for the benefit of the corporation shall be endorsed in blank or have proper stock powers attached so that said certificates are at all times in due form for transfer, and shall be held for safekeeping in such manner as shall be determined from time to time by the Board of Directors.

Section 8.8. Indemnification of Officers, Directors, Employees and Agents; Insurance.

The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner that he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

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Section 8.9. Amendment of Bylaws. These bylaws may be added to, altered, amended or repealed, and new or other bylaws may be made and adopted by vote of a majority of the Board of Directors, at any regular or special meeting of the Board of Directors, and without prior notice of intent to do so.

Section 8.10. Forum Selection. Unless the corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the corporation, (ii) any action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee or agent of the corporation to the corporation or the corporation's stockholders, (iii) any action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, the certificate of incorporation or the bylaws of the corporation or (iv) any action asserting a claim governed by the internal affairs doctrine, in each case subject to said Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein.