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EX-3.1 2 vpg-2023x8kxbylawsxex31.htm EX-3.1 Document

Exhibit 3.1

THIRD AMENDED AND RESTATED
BYLAWS
OF
VISHAY PRECISION GROUP, INC.

AS OF March 30, 2023

__________________

ARTICLE I
STOCKHOLDERS

Section 1. Certificates Representing Stock. The shares of the corporation shall be represented by certificates in the form approved by the Board of Directors of the corporation (the “Board”), unless the Board by resolution provides that some or all classes or series of shares of the corporation shall be uncertificated shares (provided that no such resolution shall apply to shares theretofore represented by a certificate unless and until such certificate is surrendered to the corporation). Every holder of stock that is represented by a certificate shall be entitled to have a certificate signed by, or in the name of, the corporation by any two authorized officers of the corporation certifying the number of shares owned by him or her in the corporation. If such certificate is countersigned by a transfer agent other than the corporation or its employee, or by a registrar other than the corporation or its employee, any other signature on the certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue. Whenever the corporation shall be authorized to issue more than one class of stock or more than one series of any class of stock and whenever the corporation shall issue any shares of its stock as partly paid stock, the certificates representing shares of any such class or series or of any such partly paid stock shall set forth thereon the statements prescribed by the Delaware General Corporation Law, as amended from time to time (the “General Corporation Law”). Any restrictions on the transfer or registration of transfer of any shares of stock of any class or series shall be noted conspicuously on any certificate representing such shares. The corporation may issue a new certificate of stock in place of any certificate theretofore issued by it, alleged to have been lost, stolen, or destroyed, and the Board may require the owner of any lost, stolen, or destroyed certificate, or his or her legal representative, to give the corporation a bond sufficient to indemnity the corporation against any claim that may be made against it on account of the alleged loss, theft, or destruction of any such certificate or the issuance of any such new certificate.

Section 2. Fractional Share Interests. The corporation may, but shall not be required to, issue fractions of a share. In lieu thereof it shall either pay in cash the fair value of fractions of a share, as determined by the Board, to those entitled thereto or issue scrip or fractional warrants in registered or bearer form over the manual or facsimile signature of an officer of the corporation or of its agent, exchangeable as therein provided for full shares, but such scrip or fractional warrants shall not entitle the holder to any rights or a stockholder except as therein provided. Such scrip or fractional warrants may be issued subject to the condition that the same shall become void if not exchanged for certificates representing full shares of stock, or for full uncertificated shares, before a specified date, or subject to the condition that the

shares of stock for which such scrip or fractional warrants are exchangeable may be sold by the corporation and the proceeds thereof distributed to the holders of such scrip or fractional warrants, or subject to any other conditions which the Board may determine.

Section 3. Stock Transfers. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, transfers or registration of transfers of shares of stock of the corporation shall be made only on the stock ledger of the corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the corporation or with a transfer agent or a registrar, if any, and, if such shares are certificated, on surrender of the certificate or certificates for such shares of stock properly endorsed and the payment of all taxes due thereon.

Section 4. Record Date for Stockholders.

A. In order that the corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board 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, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.

B. 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 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 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 not be more than sixty (60) days prior to such action. If no such 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 adopts the resolution relating thereto.

C. Unless otherwise restricted by the Certificate of Incorporation, in order that the corporation may determine the stockholders entitled to express consent to corporate action in writing without a meeting, the Board 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, and which record

date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board. If no record date for determining stockholders entitled to express consent to corporate action in writing without a meeting is fixed by the Board, (a) when no prior action of the Board is required by law, the record date for such purpose 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 accordance with applicable law, and (b) if prior action by the Board is required by law, the record date for such purpose shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.

Section 5. Meaning of Certain Terms. As used herein in respect of the right to notice of a meeting of stockholders or a waiver thereof or to participate or vote thereat or to consent or dissent in writing in lieu of a meeting, as the case may be, the term “share” or “shares” or “share of stock” or “shares of stock” or “stockholder” or “stockholders” refers to an outstanding share or shares of stock and to a holder of record or holders of record of outstanding shares of stock when the corporation is authorized to issue only one class of shares of stock, and said reference is also intended to include any outstanding share or shares of stock and any holder of record or holders of record of outstanding shares of stock of any class upon which or upon whom the Amended and Restated Certificate of Incorporation (as defined below) confers such rights where there are two or more classes or series of shares of stock or upon which or upon whom the General Corporation Law confers such rights notwithstanding that the Amended and Restated Certificate of Incorporation may provide for more than one class or series of shares of stock, one or more of which are limited or denied such rights thereunder; provided, however, that no such right shall vest in the event of an increase or a decrease in the authorized number of shares of stock of any class or series which is otherwise denied voting rights under the provisions of the Amended and Restated Certificate of Incorporation, including any Preferred Stock which is denied voting rights under the provisions of the resolution or resolutions adopted by the Board with respect to the issuance thereof.

Section 6. Meetings of Stockholders.

A. Time. Each annual meeting of stockholders shall be held on the date and at the time fixed, from time to time, by the Board or the Chair. The corporation shall hold an annual meeting not less frequently than once every calendar year. A special meeting of stockholders shall be held on the date and at the time as may be fixed by the Board or the Chair.

B. Place. Annual meetings and special meetings shall be held at such place, if any, within or without the State of Delaware, and may be held by means of remote communication, as the Board may, from time to time, designate. Unless otherwise specified by the person or persons calling a stockholders meeting, which shall be either the Board of the Chair, the meeting shall be held at the registered office of the corporation in the State of Delaware.

C. Call. Annual meetings of stockholders and special meetings of stockholders may be called by the Board or by the Chair.

D. Notice; Waiver of Notice. Written notice of each meeting of stockholders shall be given by the Chair of the Board and/or the Secretary of the corporation in compliance with the provisions of the General Corporation Law and any other applicable law.

E. Stockholder List. There shall be prepared a complete list of the stockholders entitled to vote at any meeting of stockholders (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares of capital stock of the corporation registered in the name of each stockholder no later than the tenth (10th) day before each meeting of the stockholders. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least ten (10) days ending on the day before the meeting date: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list was provided with the notice of the meeting; or (b) during ordinary business hours, at the principal place of business of the corporation. Except as provided by applicable law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, and the list of stockholders or to vote in person or by proxy at any meeting of stockholders.

F. Conduct of Meeting. The Board may adopt by resolution such rules and regulations for the conduct of the meeting of the stockholders as it shall deem appropriate. Meetings of the stockholders shall be presided over by one of the following officers in the order of seniority and if present and acting - the Chair of the Board, if any, the Vice-Chair of the Board, if any, the President, a Vice-President, a chair for the meeting chosen by the Board, or, if none of the foregoing is in office and present and acting, by a chair to be chosen by the stockholders. The Secretary of the corporation, or in his or her absence, an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present the chair of the meeting shall appoint a secretary of the meeting.

G. Nominations and Proposals.

1. Nominations of persons for election to the Board and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders (a) pursuant to the corporation’s notice of meeting, (b) by or at the direction of the Board (or, with respect to director nominations, by any committee whose responsibilities include director nominations), or (c) by any stockholder of the corporation who (i) was a stockholder of record at the time of giving of notice provided for in this Subsection G and at the time of an annual meeting, (ii) is entitled to vote at the meeting and (iii) complies with the notice procedures set forth in this Subsection G as to such proposals or nominations. Clause (c) in the foregoing sentence provides the exclusive means for a stockholder to make nominations or submit proposals of other business (other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended and the rules and regulations thereunder (as so amended, inclusive of such rules and regulations, the “Exchange Act”) and included in the corporation’s notice of meeting) before an annual meeting of stockholders. The only matters that may be brought before a special meeting are the matters specified in the notice of meeting given by or at the direction of the person calling the meeting pursuant to Section 6, Subsection C, and stockholders shall not be permitted to propose business to be brought before a special meeting of the

stockholders. Stockholders seeking to nominate persons for election to the Board must comply with this Subsection G.

2. Without qualification, for any nominations or any other business to be properly brought before an annual meeting by a stockholder pursuant to this Subsection G, the stockholder must have (i) given timely notice thereof in writing to the Secretary of the corporation, (ii) provided the information, agreements and questionnaires with respect to such stockholder and its proposed business or candidate for nomination as required to be set forth by this Subsection G, and (iii) provided any updates or supplements to such notice at the times and in the forms required by this Subsection G and (b) such other business must otherwise be a proper matter for stockholder action under the General Corporation Law. To be timely, a stockholder’s notice (other than a request for inclusion of a proposal in the corporation’s proxy statement pursuant to Rule l4a-8 of the Exchange Act) shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the corporation not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting of stockholders; provided, however, that in the event that the date of such annual meeting is more than thirty (30) days before or more after such anniversary date, notice by the stockholder to be timely must be so delivered not later than the close of business on the tenth (10th) day following the day on which such notice of the date of the annual meeting was mailed or such public announcement of the date of the annual meeting was made. 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. In no event may a stockholder provide timely notice with respect to a greater number of director candidates than are subject to election by stockholders at the applicable meeting. To be in proper form, a stockholder’s notice (whether given pursuant to this Paragraph G.2 or Paragraph G.4 below) to the Secretary must:

(i) set forth, as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, (a) the name and address of such stockholder, as they appear on the corporation’s books, and of such beneficial owner, if any, (b) (A) the class or series and number of shares of the corporation which are, directly or indirectly, owned beneficially (within the meaning of Rule 13d-3 under the Exchange Act) 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 beneficial owner, if any, 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, including a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered

into as of the date of the stockholder’s notice by, or on behalf of, such stockholder and any such beneficial owner, whether or not such instrument or right shall be subject to settlement in underlying shares of capital stock of the corporation, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such stockholder or any such beneficial owner, with respect to shares of stock of the corporation, (C) any proxy, contract, arrangement, understanding or relationship pursuant to which such stockholder or beneficial owner, if any, has a right to vote any shares of any security of the corporation or has granted any such right to any person or persons, (D) any short interest in any security of the corporation (for purposes of these Bylaws 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 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 is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (G) any performance-related fees (other than an asset-based fee) that such stockholder is entitled to based upon 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 immediate family sharing the same household (which information shall be supplemented by such stockholder and beneficial owner, if any, not later than then (10) days after the record date for the meeting to disclose such ownership as of the record date), (c) any material pending or threatened legal proceeding in which such stockholder is a party or material participant involving the corporation or any of its officers or directors, or any affiliate of the corporation, (d) any other material relationship between such stockholder, on the one hand, and the corporation or any affiliate of the corporation, on the other hand, (e) any direct or material indirect interest in any material contract or agreement of such stockholder with the corporation or any affiliate of the corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement), (f) a representation that the stockholder is a holder of record of stock of the corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, (g) a representation that such stockholder intends or is part of a group which intends to deliver a proxy statement or form of proxy to holders of at least the percentage of the corporation’s outstanding capital stock required to approve or adopt the proposal, otherwise solicit proxies from stockholders in support of such proposal, or to solicit proxies in support of any proposed nominee in accordance with Rule 14a-19 under the Exchange Act and (h) 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, as applicable, the proposal and/or for the election of directors in a contested election pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder;

(ii) if the notice relates to any business other than a nomination of a director or directors that the stockholder proposes to bring before the meeting, set forth (a) 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, on whose behalf the nomination or proposal is made, in such business, (b) a reasonably detailed

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, (c) the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), and (d) any other information relating to such item of business that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies in support of the business proposed to be brought before the meeting pursuant to Section 14 of the Exchange Act;

(iii) set forth, as to each person, if any, whom the stockholder proposes to nominate for election or reelection to the Board (a) all information relating to such person 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 in a contested election pursuant to Section 14 of the Exchange Act (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected) and (b) a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings during the three years immediately prior to the date of notice, and any other material relationships, between (or among) such stockholder and beneficial owner, if any, on whose behalf the nomination or proposal is made, and their respective affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee, and his or her respective affiliates and associates, or others acting in concert therewith, on the other hand, including, without limitation all information that would be required to be disclosed pursuant to Item 404 promulgated under Regulation S-K if the stockholder making the nomination and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof or person acting in concert therewith, were the “registrant” for purposes of such rule and the nominee were a director or executive officer of such registrant; and

(iv) with respect to each nominee for election or reelection to the Board, include a completed and signed questionnaire, representation and agreement referred to in Paragraph G.8 below.

In addition to the information required above the corporation may require any proposing stockholder to furnish such other information and documentation as the corporation may reasonably request in order to determine the eligibility or suitability of a candidate’s nomination to serve as a director of the corporation or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such proposed nominee, whether under the listing standards of each securities exchange upon which the corporation’s securities are listed, any applicable rules of the Securities and Exchange Commission, any publicly disclosed standards used by the Board in selecting nominees for election as director and for determining and disclosing the independent of the corporation’s directors, including those applicable to a director’s service on any of the committees of the Board, or the requirements of any other laws, regulations or standards applicable to the corporation. The supplemental information and documentation contemplated by this paragraph shall be provided by such stockholder within ten (10) days after it has been requested by the corporation.

3. Notwithstanding anything in the second sentence of Paragraph G.2 to the contrary, in the event that the number of directors to be

elected to the Board is increased and there is no public announcement by the corporation naming all of the nominees for director or specifying the size of the increased Board at least 100 days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Subsection G shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the corporation.

4. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the corporation’s notice of meeting (or any supplement thereto) as described in Subsection D above. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the corporation’s notice of meeting (or any supplement thereto) (a) by or at the direction of the Board or (b) provided that the notice of meeting specifies that directors shall be elected at such meeting, by any stockholder of the corporation who (i) is a stockholder of record at the time of giving of notice provided for in this Paragraph G.4 at the time of the special meeting, (ii) is entitled to vote at the meeting, and (iii) complies with the notice procedures set forth in Paragraph G.2 as to such nomination (other than with respect to timing requirements, which shall be governed by the next sentence). In the event the corporation calls a special meeting of stockholders for the purpose of electing one (1) or more directors to the Board, for any stockholder entitled to vote in such election of directors to nominate a person or persons (as the case may be) for election to such position(s) as specified in the corporation’s notice of meeting, the stockholder must have given timely notice thereof in writing to the Secretary of the corporation, which notice shall set forth the information otherwise required to be included in a notice of a nomination to be made at an annual meeting in accordance with Paragraph G.2, and provide any updates or supplements to such notice required by Paragraph G.2 or this Paragraph G.4. To be timely, a stockholder’s notice with respect to any such nomination (including the completed and signed questionnaire, representation and agreement required by Paragraph G.8 below) shall be delivered to the Secretary at the principal executive offices of the corporation not earlier than the close of business on the 90th day prior to the date of such special meeting and not later than the close of business on the later of the sixtieth (60th) day prior to the date of such special meeting or, if the first public announcement of the date of such special meeting is less than 100 days prior to the date of such special meeting, the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting. In no event shall any adjournment or postponement of a special meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described above. The chairperson of a special meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought before the meeting in accordance with the provisions of this Subsection G and, if the chairperson should so

determine, any such business not properly brought before the meeting shall not be transacted.

5. Any stockholder providing notice of nominations of persons for election to the Board at a special meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice under this Subsection G shall be true and correct as of the record date for determining the stockholders entitled to notice of the meeting and as of the date that is ten (10) business days prior to the date of the meeting or any adjournment or postponement thereof, and such update and supplement shall be delivered to the Secretary of the corporation at the principal executive offices of the corporation not later than five (5) business days after the record date for determining the stockholders entitled to 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 five (5) business days prior to the date of 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 date of the meeting or any adjournment or postponement thereof).

6. Only such persons who are nominated in accordance with the procedures set forth in these Bylaws, including compliance with the information and document production requirements in these Bylaws, shall be eligible to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in these Bylaws. Except as otherwise provided by law, the Amended and Restated Certificate of Incorporation, as it may be amended from time to time (the “Amended and Restated Certificate of Incorporation”) or these Bylaws, the Chair of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, to declare that such defective proposal or nomination shall be disregarded.

7. For purposes of this Subsection G, “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.

8. Notwithstanding the provisions of this Subsection G, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in Subsection G of these Bylaws; provided, however, that any references in these Bylaws to the Exchange Act or the rules promulgated thereunder are not intended to and shall not limit the requirements applicable to nominations or proposals as to any other business to be considered pursuant to Paragraph G.1(c) or Paragraph G.4 of these Bylaws. Nothing in these Bylaws shall be

deemed to affect any rights (i) of stockholders to request inclusion of proposals in the corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any class or series of shares of the corporation having preference over the Common Stock as to dividends or upon liquidation if and to the extent provided for under law, the Amended and Restated Certificate of Incorporation or these Bylaws.

9. Notwithstanding the foregoing provisions of this Subsection G, unless otherwise required by law, no stockholder shall solicit proxies in support of director nominees other than the corporation’s nominees unless such stockholder has complied with Rule 14a-19 under the Exchange Act in connection with the solicitation of such proxies in all respects, including but not limited to the minimum solicitation and notice requirements. If any such stockholder (1) provides notice pursuant to Rule 14a-19(b) under the Exchange Act and (2) subsequently fails to comply with the requirements of Rules 14a-19(a)(2) and Rule 14a-19(a)(3) under the Exchange Act, then the corporation shall disregard any proxies or votes solicited for such stockholder’s candidates. Upon request by the corporation, if a stockholder provides notice pursuant to Rule14a-19(b) under the Exchange Act, such stockholder shall deliver to the corporation, no later than five (5) business days prior to the applicable meeting, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) and 14a-19(b) and the corporation will determine whether such stockholder complied in all respects.

10. To be eligible to be a nominee for election or reelection as a director of the corporation, a person must deliver (in accordance with the time periods prescribed for delivery of notice under Paragraph G.2 or Paragraph G.4, as applicable) to the Secretary of the corporation at the principal executive offices of the corporation a written questionnaire with respect to the background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon written request) and a written representation and agreement (in the form provided by the Secretary upon written request) that such person (A) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the corporation or (2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the corporation, with such person’s fiduciary duties under applicable law, (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, and (C) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination is being made, would be in compliance, if elected as a director of the corporation, and will comply with all applicable publicly disclosed corporate governance, conflict of

interest, confidentiality and stock ownership and trading policies and guidelines of the corporation.

H. Proxy Representation. Every stockholder may authorize another person or persons to act for him or her by proxy in all matters in which a stockholder is entitled to participate, whether by waiving notice of any meeting, voting or participating at a meeting, or expressing consent or dissent without a meeting. Every proxy must be signed by the stockholder or by his or her attorney-in-fact. No proxy shall be voted or acted upon after three (3) years from its date unless such proxy provides for a longer period. A duly executed proxy shall be irrevocable if it states that it is irrevocable and, if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the corporation generally. Notwithstanding anything to the contrary in Subsection G, a stockholder may authorize another person or persons to act for the stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such transmission must either set forth or be submitted with information from which it can be determined that the transmission was authorized by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction of the document (including any transmission) authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original document for any and all purposes for which the original document could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original document. Any stockholder directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than white, which shall be reserved for the exclusive use of the Board.

I. Inspectors and Judges. The Board, in advance of any meeting, may, but need not, appoint one or more inspectors of election or judges of the vote, as the case may be, to act at the meeting or any adjournment thereof. If an inspector or inspectors or judge or judges are not appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors or judges. In case any person who may be appointed as an inspector or judge fails to appear or act, the vacancy may be filled by appointment made by the Board in advance of the meeting or at the meeting by the person presiding thereat. Each inspector or judge, if any, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector or judge at such meeting with strict impartiality and according to the best of his or her ability. The inspectors or judges, if any, shall determine the number of shares of stock represented at the meeting, the existence of a quorum, the validity and effect of proxies, and shall receive votes, ballots or consents, hear and determine all challenges and questions arising in connection with the right to vote, count and tabulate all votes, ballots or consents, determine the results, and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the inspector or inspectors or judge or judges, if any, shall make a report in writing of any challenge, question or matter determined by him, her or them and execute a certificate of any fact found by him, her or them.

J. Quorum. Except as the General Corporation Law or these Bylaws may otherwise provide, the holders of a majority of the combined voting power of the then outstanding shares of stock entitled to vote generally in the election of directors, present in person or represented by proxy, voting together as a single class, shall constitute a quorum at a meeting of stockholders for the transaction of any business. The stockholders present may adjourn the meeting despite the absence of a quorum. When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any stockholders.

K. Voting. Unless otherwise provided in the Amended and Restated Certificate of Incorporation, each stockholder entitled to vote in accordance with the terms of the Amended and Restated Certificate of Incorporation and of these Bylaws, or, with respect to the issuance of Preferred Stock, in accordance with the terms of a resolution or resolutions of the Board, shall be entitled to (i) one vote per share of common stock, and (ii) ten votes per share of Class B common stock, in each case, in person or by proxy, for each share of such stock entitled to vote held by such stockholder. In the election of directors, a plurality of the votes cast shall elect. Any other action shall be approved by a majority of the votes cast except where the Amended and Restated Certificate of Incorporation or the General Corporation Law requires a different percentage of votes and/or a different exercise of voting power. In the election of directors, voting need not be by ballot. Voting by ballot shall not be required for any other corporate action except as otherwise provided by the General Corporation Law.

ARTICLE II
DIRECTORS

Section 1. Functions and Definition. The business of the corporation shall be managed by the Board of the corporation. The use of the phrase “whole board” herein refers to the total number of directors that the corporation would have if there were no vacancies on the Board.

Section 2. Qualifications and Number. A director need not be a stockholder, a citizen of the United States or a resident of the State of Delaware. The number of directors constituting the whole board shall be not less than three and not more than nine. Such number shall be fixed from time to time by action of the Board, or, if the number is not fixed, the number shall be five.

Section 3. Election and Term. Each director shall serve for a term lasting the shorter of (i) one year, and (ii) until the next meeting of stockholders at which directors are elected, and, in each case, until such earlier or later time as his or her successor is elected and qualified, or until his or her earlier death or resignation or removal. Any director may resign at any time upon written notice to the corporation. Such resignation shall take effect at the date of receipt of such notice by the corporation or at such later effective date or upon the happening of an event or events as is specified in such written notice. In the interim between annual meetings of stockholders or special meetings of stockholders called for the election of directors and/or for the removal of one or more directors and for the filling of any vacancies in the Board, including vacancies resulting from the removal of directors for cause or the expansion of the size of the Board to create one or more new directorships, any vacancy in the Board may be filled by the vote of a majority of the remaining directors then in office, even if less than a quorum, or by the sole remaining director.

Section 4. Meetings.

A. Time and Place. Meetings of the Board shall be held at such time and at such place within or without the State of Delaware as shall be specified, in the case of a regular meeting, by the Board or the Chair or, in the case of a special meeting, in the notice given as hereinafter provided for special meetings of the Board.

B. First Regular Meeting of Newly Elected Board. Each newly elected Board shall meet reasonably promptly after each annual meeting of the stockholders at which such Board was elected, which may be at the same place at which such annual meeting is held, and no notice of such meeting shall be necessary, provided a quorum shall be present. In the event such meeting is not so held immediately after an annual meeting of the stockholders, it may be held at such time and place as shall be specified in the notice given as hereinafter provided for special meetings of the Board.

C. Call. No call shall be required for regular Board meetings for which the time and place have been fixed. Special meetings may be called by or at the direction of the Chair of the Board, the Vice-Chair of the Board, if any, or the President, or of a majority of the directors in office.

D. Notice or Actual or Constructive Waiver. No notice shall be required for regular meetings for which the time and place have been fixed. Written, oral, electronic or any other mode of notice of the time and place shall be given for special meetings in sufficient time for the convenient assembly of the directors thereat. The notice of any meeting need not specify the purpose of the meeting, and any and all business may be transacted at a special meeting unless otherwise indicated in the special meeting notice. Any requirement of furnishing a notice shall be waived by any director who signs a written waiver of such notice before or after the time stated therein. Attendance of a director at a meeting of the Board shall constitute a waiver of notice of such meeting, except when the director 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.

E. Quorum and Action. A majority of the whole Board shall constitute a quorum, except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors then in office shall constitute a quorum, provided that (i) such majority shall constitute at least one-third (1/3) of the whole Board, and (ii) the last sentence of Article II, Section 3 shall supersede this Paragraph E. Any director may participate in a meeting of the Board by means of a conference telephone or other communications equipment by means of which all directors participating in the meeting can hear each other, and such participation in a meeting of the Board shall constitute presence in person at such meeting. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place. Except as otherwise provided in these Bylaws, and except as otherwise provided by the General Corporation Law, the act of the Board shall be the act by vote of a majority of the directors present at a meeting at which a quorum is present. The quorum and voting provisions herein stated shall not be construed as conflicting with any provisions of the General Corporation Law and these Bylaws which govern a meeting of the Board held to fill vacancies and newly created directorships in the Board.

F. Chair of the Meeting. The Chair of the Board, if any and if present and acting, shall preside at all meetings. Otherwise, the Vice-Chair of the Board, if any and if present and acting, or the President, if present and acting, or any other director chosen by the Board, shall preside.

Section 5. Removal of Directors. Subject to the rights of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect directors under specified circumstances, any director may be removed from office with or without cause by the affirmative vote of the holders of a majority of the combined voting power of the then outstanding shares of stock entitled to vote generally in the election of directors, voting together as a single class.

Section 6. Committees. The Board may, by resolution passed by a majority of the whole Board, designate one or more committees of the whole Board, each committee to consist of two or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise the powers of the Board in the management of the business and affairs of the corporation and may authorize the seal of the corporation to be affixed to all papers that may require it. In the absence or disqualification of any member of any such committee or committees, 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 to act at the meeting in the place of any such absent or disqualified member.

Section 7. Action in Writing. Any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee.

Section 8. Chair of the Board. The Chair of the Board, if one is elected, shall preside at all meetings of the Board and of the stockholders. The Chair shall perform all duties incident to the office of Chair of the Board and shall have such other powers and duties as the Board assigns to that individual. In the absence of the Chair, the Board shall designate a member of the Board as temporary chair.

ARTICLE III
OFFICERS

Section 1. Executive Officers. The Board shall elect or appoint the officers of the corporation, who shall include a Chief Executive Officer, President, Chief Financial Officer, Treasurer and Secretary. The Board may also elect or appoint one or more Vice Presidents (one or more of whom may be denominated “Executive Vice President” or “Senior Vice President”), one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers as it may determine. Any number of offices may be held by the same person.

Section 2. Term of Office; Removal. Unless otherwise provided in the resolution of election or appointment, each officer shall hold office until the meeting of the Board following the next meeting of stockholders and until his or her successor has been elected and qualified. The Board may remove any officer for cause or without cause.

Section 3. Authority and Duties. All officers, as between themselves and the corporation, shall have such authority and perform such duties in the management of

the corporation as may be provided in these Bylaws, or, to the extent not so provided, by the Board.

Section 4. The President. The President shall be the chief executive officer of the corporation.

Section 5. Vice Presidents. Any Vice President that may have been appointed, in the absence or disability of the President, shall perform the duties and exercise the powers of the President, in the order of their seniority, and shall perform such other duties as the Board shall prescribe.

Section 6. The Secretary. The Secretary shall keep in safe custody the seal of the corporation and affix it to any instrument when authorized by the Board, and shall perform such other duties as may be prescribed by the Board.

Section 7. The Treasurer. The Treasurer shall have the care and custody of the corporate funds, and other valuable effects, including securities, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all monies and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the Board. The Treasurer shall disburse the funds of the corporation as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the President and the Board, at the regular meetings of the Board, or whenever they may require it, an account of all his or her transactions as Treasurer and of the financial condition of the corporation. If required by the Board, the Treasurer shall give the corporation a bond for such term, in such sum and with such surety or sureties as shall be satisfactory to the Board for the faithful performance of the duties of his or her office and for the restoration to the corporation, in case of his or her death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his or her possession or under his or her control belonging to the corporation.

ARTICLE IV
CORPORATE SEAL AND
CORPORATE BOOKS

The corporate seal shall be in such form as the Board shall prescribe. The books of the corporation may be kept within or without the State of Delaware, at such place or places as the Board may, from time to time, determine.

ARTICLE V
FISCAL YEAR

The fiscal year of the corporation shall be fixed, and shall be subject to change, by the Board.

ARTICLE VI
AMENDMENTS

The Bylaws of the corporation may be adopted, amended or repealed by the Board or the Stockholders.