Form 8-K

8-K — BEAZER HOMES USA INC

Accession: 0001104659-26-117198

Filed: 2026-10-20

Period: 2026-10-20

CIK: 0000915840

SIC: 1531 (OPERATIVE BUILDERS)

Item: Termination of a Material Definitive Agreement

Item: Completion of Acquisition or Disposition of Assets

Item: Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing

Item: Material Modifications to Rights of Security Holders

Item: Changes in Control of Registrant

Item: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers

Item: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

Item: Financial Statements and Exhibits

Documents

8-K — tm2622398d20_8k.htm (Primary)

EX-3.1 — EXHIBIT 3.1 (tm2622398d20_ex3-1.htm)

EX-3.2 — EXHIBIT 3.2 (tm2622398d20_ex3-2.htm)

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8-K — FORM 8-K

8-K (Primary)

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2026-10-20

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest reported event): October 20, 2026

BEAZER HOMES USA, INC.

(Exact name of registrant as specified in its

charter)

Delaware

001-12822

58-2086934

(State or other jurisdiction

of incorporation)

(Commission

File Number)

(IRS Employer

Identification No.)

2002 Summit Boulevard, 15th Floor

Atlanta, Georgia 30319

(Address of Principal Executive Offices)

(770) 829-3700

(Registrant’s telephone number, including

area code)

None

(Former name or former address, if changed since

last report)

Check the appropriate box below if the Form 8-K filing is intended

to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of

the Act:

Title of each class

Trading Symbol(s)

Name of each exchange on which registered

Common Stock, $0.001 par value

BZH

New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth

company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities

Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ¨

If an emerging growth company, indicate by check

mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting

standards provided pursuant to Section 13(a) of the Exchange Act. ¨

Introductory Note.

On October 20, 2026 (the “Closing Date”),

Beazer Homes USA, Inc., a Delaware corporation (the “Company”, “we”, “our” or

“us”), completed the previously announced merger of Bulldogs Merger Sub, Inc., a Delaware corporation (“Merger

Sub”) and a wholly owned subsidiary of Dream Finders Homes, Inc., a Texas corporation (“Parent”), with

and into the Company (the “Merger”), with the Company surviving the Merger as a wholly owned subsidiary of Parent.

The Merger was effected pursuant to the Agreement and Plan of Merger, dated as of August 6, 2026 (the “Merger Agreement”),

by and among Parent, Merger Sub and the Company, as previously disclosed by the Company on August 7, 2026 in a Current Report on Form

8-K filed with the Securities and Exchange Commission (“SEC”).

Item 1.02

Termination of a Material Definitive Agreement.

On the Closing Date, in connection with the consummation

of the Merger, all outstanding obligations due under the Credit Agreement, dated as of October 13, 2022 (as amended, restated or otherwise

modified from time to time, the “Credit Agreement”), by and among the Company, the lenders and issuing lenders party

thereto from time to time and JPMorgan Chase Bank, N.A., as administrative agent, were repaid in full and the Credit Agreement was terminated.

In addition, as previously announced by the Company,

on September 28, 2026, in accordance with the Indenture, dated as of September 24, 2019 (the “Indenture”), governing

the terms of the Company’s $350 million aggregate principal amount of 7.250% Senior Notes due 2029 (the “2029 Notes”),

U.S. Bank Trust Company, National Association, as successor in interest to U.S. Bank National Association (the “2029 Notes Trustee”),

delivered notice of conditional redemption to the holders of the 2029 Notes in relation to the redemption in full of all of the outstanding

2029 Notes on the date of the Effective Time (as defined below), conditioned upon the substantially concurrent completion of the Merger,

in accordance with the Indenture.

On the Closing Date, Parent caused to be irrevocably

deposited with the 2029 Notes Trustee sufficient funds to fund the redemption of the outstanding 2029 Notes.

Item 2.01

Completion of Acquisition or Disposition of Assets.

On the Closing Date, pursuant to and in accordance

with the Merger Agreement, Merger Sub merged with and into the Company, with the Company surviving the Merger as a direct wholly owned

subsidiary of Parent. At the effective time of the Merger (the “Effective Time”), each share of common stock,

par value $0.001 per share, of the Company (each, a “Share”) that was issued and outstanding immediately prior to the

Effective Time (other than Shares held by the Company as treasury stock, Shares held by Parent or Merger Sub, and Shares held by any direct

or indirect wholly owned subsidiary of the Company or Parent (other than Merger Sub), in each case, immediately prior to the Effective

Time, and Dissenting Shares (as defined below)) was converted into the right to receive $33.50 in cash, without interest (the “Merger

Consideration”), and subject to any required withholding taxes.

In addition, at the Effective Time:

· each option to purchase Shares granted under the Company’s equity plans (each, a “Company

Option”) that was outstanding and unexercised, whether vested or unvested, as of immediately prior to the Effective Time was

fully vested, cancelled and converted into the right to receive an amount in cash (without interest), if any, equal to the product of

(A) the total number of Shares subject to such Company Option, multiplied by (B) the excess, if any, of the Merger Consideration over

the exercise price per share under such Company Option, less applicable taxes required to be withheld with respect to such payment; provided,

however, that any Company Option which had a per share exercise price that was greater than or equal to the Merger Consideration was cancelled

at the Effective Time for no consideration or payment;

· each restricted stock award granted under the Company’s equity plans (each, a “Company

RSA”), whether vested or unvested, that was outstanding as of immediately prior to the Effective Time was cancelled and converted

into the right to receive an amount in cash (without interest) equal to the product of (A) the aggregate number of Shares subject to such

Company RSA, multiplied by (B) the Merger Consideration, less applicable taxes required to be withheld with respect to such payment;

· each performance-based restricted stock award granted under the Company’s equity plans (each, a

“Company Performance-Based RSA”), whether vested or unvested, that was outstanding as of immediately prior to the Effective

Time was cancelled and converted into the right to receive an amount in cash (without interest) equal to the product of (A) the total

number of Shares subject to such Company Performance-Based RSA (with the performance conditions for any uncompleted periods deemed achieved

at target level), multiplied by (B) the Merger Consideration, less applicable taxes required to be withheld with respect to such payment;

and

· each performance-based cash award granted under the Company’s equity plans (each, a “Company

Performance-Based Cash Award”) that was outstanding as of immediately prior to the Effective Time was cancelled and converted

into the right to receive an amount in cash (without interest) equal to the value of such Company Performance-Based Cash Award (with the

performance conditions for any uncompleted periods deemed achieved at target level).

At the Effective Time, each Share held by the

Company as treasury stock or held directly by Parent or Merger Sub immediately prior to the Effective Time was automatically cancelled

and ceased to exist, and no consideration or payment was delivered in exchange therefor or in respect thereof. At the Effective Time,

all Shares held by a holder that was entitled to, and properly exercised and perfected his, her or its demand for appraisal rights

in accordance with Section 262 of the General Corporation Law of the State of Delaware (the “DGCL”) with respect

to such Shares (“Dissenting Shares”) were cancelled and ceased to exist, and the holders of Dissenting Shares became

entitled only to the rights granted to them under Section 262 of the DGCL with respect to such Dissenting Shares.

The foregoing description of the Merger Agreement

contained in this Item 2.01 does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger

Agreement. A copy of the Merger Agreement was filed as Exhibit 2.1 to the Current Report on Form 8-K by the Company with the SEC on August

7, 2026, and is incorporated herein by reference.

The information set forth in the Introductory

Note of this Current Report is incorporated by reference in this Item 2.01.

Item 3.01

Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

In connection with the consummation of the Merger,

the Company requested that the New York Stock Exchange (the “NYSE”) suspend trading of the Shares and file with the

SEC an application on Form 25 to delist and deregister the Shares under Section 12(b) of the Securities Exchange Act of 1934, as

amended (the “Exchange Act”). The delisting of Shares from the NYSE will be effective 10 days after the filing of the

Form 25. Following the effectiveness of such Form 25, the Company expects to file with the SEC a certification on Form 15 requesting the

termination of registration of the Shares under Section 12(g) of the Exchange Act and the suspension of the Company’s reporting

obligations under Sections 13 and 15(d) of the Exchange Act with respect to the Shares. Trading of the Shares on the NYSE was halted prior

to the opening of trading on the Closing Date.

The information set forth in the Introductory

Note and Item 2.01 of this Current Report is incorporated by reference in this Item 3.01.

Item 3.03

Material Modification to Rights of Security Holders.

In connection with the completion of the Merger,

at the Effective Time, holders of Shares, Company Options, Company RSAs, Company Performance-Based RSAs and Company Performance-Based

Cash Awards ceased to have any rights in connection with their holding of such securities other than the right to receive the Merger Consideration

or other amount, if any, as applicable under the Merger Agreement and as described in Item 2.01 of this Current Report.

The information set forth in the Introductory

Note, Item 2.01, Item 3.01, Item 5.01 and Item 5.03 of this Current Report is incorporated by reference in this Item 3.03.

Item 5.01

Changes in Control of Registrant.

As a result of the consummation of the Merger,

a change of control of the Company occurred on the Closing Date and the Company became a wholly owned subsidiary of Parent and the separate

corporate existence of Merger Sub ceased.

The information set forth in the Introductory

Note, Item 2.01 and Item 5.02 of this Current Report is incorporated by reference in this Item 5.01.

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of

Certain Officers.

In connection with the consummation of the Merger,

as of the Effective Time, each of the directors of the Company – Allan P. Merrill, Howard C. Heckes, Lloyd E. Johnson, John J. Kelley

III, Peter M. Orser, Norma A. Provencio, June Sauvaget, Alyssa P. Steele and C. Christian Winkle – resigned from the board of directors

of the Company. At the Effective Time, Patrick O. Zalupski, Rick Beckwitt, Justin W. Udelhofen, Megha H. Parekh, Leonard M. Sturm, William

W. Weatherford and Steve Fischer, each a director of Merger Sub immediately prior to the Effective Time, became directors of the Company.

In accordance with the terms of the Merger Agreement,

the officers of the Company immediately prior to the Effective Time continued as the officers of the Company after the Merger and shall

hold office until their respective successors have been duly elected or appointed and qualified or until their earlier death, resignation

or removal in accordance with the certificate of incorporation and bylaws of the Company and applicable law.

The information set forth in the Introductory

Note and Item 2.01 of this Current Report is incorporated by reference in this Item 5.02.

Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On the Closing Date, in connection with the consummation

of the Merger, the certificate of incorporation and bylaws of the Company were each amended and restated in their entirety. A copy of

the Second Amended and Restated Certificate of Incorporation of the Company is filed herewith as Exhibit 3.1 and is incorporated herein

by reference. A copy of the Fifth Amended and Restated Bylaws of the Company is filed herewith as Exhibit 3.2 and is incorporated herein

by reference.

The information set forth in the Introductory

Note and Item 2.01 of this Current Report is incorporated by reference in this Item 5.03.

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits.

2.1

Agreement and Plan of Merger, dated as of August 6, 2026, by and among Dream Finders Homes, Inc., Bulldogs Merger Sub, Inc. and Beazer Homes USA, Inc. (incorporated by reference to Exhibit 2.1 to Beazer Homes USA, Inc.’s Current Report on Form 8-K filed on August 7, 2026).

3.1

Second Amended and Restated Certificate of Incorporation of Beazer Homes USA, Inc.

3.2

Fifth Amended and Restated Bylaws of Beazer Homes USA, Inc.

104

Cover Page Interactive Data File (embedded within the Inline XBRL document).

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934,

the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

BEAZER HOMES USA, INC.

By:

/s/ David I. Goldberg

Name: David I. Goldberg

Date:

October 20, 2026

Title:   Senior Vice President and Chief Financial Officer

EX-3.1 — EXHIBIT 3.1

EX-3.1

Filename: tm2622398d20_ex3-1.htm · Sequence: 2

Exhibit 3.1

SECOND AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

BEAZER HOMES USA, INC.

ARTICLE I

The name of the corporation is Beazer Homes USA, Inc. (the

“Corporation”).

ARTICLE II

The address of the Corporation’s

registered office in the State of Delaware is c/o The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington,

New Castle County, Delaware 19801. The name of its registered agent at such address is: The Corporation Trust Company.

ARTICLE III

The nature of the business

and the purposes to be conducted and promoted by the Corporation are to conduct any lawful business, to promote any lawful purpose and

to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware,

as amended (“DGCL”). The Corporation will have perpetual existence.

ARTICLE IV

The total number of shares of stock which the Corporation shall have authority to issue is one thousand (1,000) shares of common

stock, $0.01 par value per share (the “Common Stock”).

Shares of the Common Stock may be issued from time to time as the Board of Directors of the Corporation (the “Board”)

shall determine and on such terms and for such consideration as shall be fixed by the Board. The amount of the authorized Common Stock

of the Corporation may be increased or decreased by the affirmative vote of the holders of a majority of the outstanding Common Stock

of the Corporation entitled to vote.

ARTICLE V

Elections of directors

need not be by written ballot unless required by the Bylaws of the Corporation. Any director may be removed from office either with or

without cause at any time by the affirmative vote of the holders of a majority of the outstanding Common Stock of the Corporation entitled

to vote, given at a meeting of the stockholders called for that purpose, or by the consent of the holders of a majority of the outstanding

Common Stock of the Corporation entitled to vote, given in accordance with DGCL Section 228.

ARTICLE VI

In furtherance and

not in limitation of the powers conferred upon the Board by law, the Board shall have the power to make, adopt, alter, amend and repeal

from time to time the Bylaws of the Corporation subject to the right of the stockholders entitled to vote with respect thereto to alter,

amend and repeal Bylaws made by the Board.

ARTICLE VII

The personal liability

of the directors or former directors of the Corporation to the Corporation or its stockholders for monetary damages for breach of fiduciary

duty as a director is hereby eliminated to the fullest extent permitted by law. Any repeal or modification of this Article VII by the

stockholders of the Corporation shall not adversely affect any right or protection of a director or former director of the Corporation

existing hereunder (or previously existed) with respect to any act or omission occurring prior to such repeal or modification. If the

DGCL is hereafter amended to further eliminate or limit the personal liability of directors, then the liability of a director or former

director of the Corporation shall be eliminated or limited to the fullest extent then permitted.

ARTICLE VIII

The Corporation,

to the full extent permitted by Section 145 of the DGCL, as amended from time to time, shall indemnify all persons whom it may indemnify

pursuant thereto, including, without limitation, its past or present directors and officers. Expenses (including attorneys’ fees)

incurred by an officer or director (past or present) in defending any civil, criminal, administrative, or investigative action, suit or

proceeding for which such officer or director may be entitled to indemnification hereunder shall be paid by the Corporation in advance

of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer

to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized

hereby. Any repeal or modification of this Article VIII by the stockholders of the Corporation shall not adversely affect any right or

protection of an officer or director or former officer or director of the Corporation existing hereunder (or previously existed) with

respect to any act or omission occurring prior to such repeal or modification.

ARTICLE IX

Subject to the last

sentence of Articles VII and VIII of this Amended and Restated Certificate of Incorporation, the Corporation reserves the

right to amend or repeal any provision contained in this Amended and Restated Certificate of Incorporation, in the manner now or hereafter

prescribed by statute, and all rights conferred upon a stockholder herein are granted subject to this reservation.

EX-3.2 — EXHIBIT 3.2

EX-3.2

Filename: tm2622398d20_ex3-2.htm · Sequence: 3

Exhibit 3.2

FIFTH AMENDED AND RESTATED

BYLAWS OF

Beazer

Homes USA, Inc.

(A DELAWARE CORPORATION)

ARTICLE I

OFFICES

SECTION 1.01.        Registered

Office. The registered office of the corporation in the state of Delaware shall be in the city of Wilmington, county of New Castle,

and the name of its registered agent shall be Corporation Service Company.

SECTION 1.02.        Other

Offices. The corporation may also have offices at such other places both within and without the state of Delaware as the corporation’s

Board of Directors (the “Board of Directors”) may from time to time determine or the business of the corporation may

require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

SECTION 2.01.        Annual

Meeting. The annual meeting of stockholders for the election of directors, and for the transaction of any other proper business, shall

be held at such date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting.

SECTION 2.02.        Special

Meeting. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the corporation’s

certificate of incorporation (as may be amended from time to time, the “Certificate of Incorporation”), may be called

at any time by the Chairman of the Board of Directors (if any), the Chief Executive Officer or the President of the corporation, or a

written order of a majority of the directors and shall be called by the President, the Chief Executive Officer or the Secretary at the

request in writing of stockholders owning not less than ten percent (10%) of the capital stock of the corporation issued and outstanding

and entitled to vote. Such request shall state the purposes of the proposed meeting.

SECTION 2.03.        Place

of Meeting. All meetings of stockholders shall be held at such place, if any, either within or without the state of Delaware, as shall

be designated from time to time by the Board of Directors and stated in the notice of such meeting. The Board of Directors may, in its

sole discretion and subject to such guidelines and procedures as the Board of Directors may from time to time adopt, determine that the

meeting shall not be held at any specific place, but may instead be held solely by means of remote communication.

SECTION 2.04.        Notice

of Meeting. Written or other proper notice of any meeting of stockholders, stating the place, if any, date and hour of the meeting,

the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such

adjourned meetings, and, in the case of a special meeting, the purpose or purposes thereof, shall be given to each stockholder entitled

to vote thereat, not less than ten (10) nor more than sixty (60) days before the meeting. Business transacted at any special meeting

of stockholders shall be limited to the purposes stated in the notice.

SECTION 2.05.        Voting

List. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten (10) days before

every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and

showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to

the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten

(10) days prior to the meeting (a) on a reasonably accessible electronic network, provided that the information required to

gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place

of business of the corporation. If the meeting is to be held at a specific place, then the list shall be produced and kept at the time

and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be

held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole

time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided

with the notice of the meeting.

SECTION 2.06.        Quorum.

At any meeting of the stockholders, the holders of a majority of the shares issued and outstanding and entitled to vote thereat, present

in person or represented by proxy, shall constitute a quorum 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 power to adjourn the

meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such

adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at

the meeting as originally notified. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date

is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at

the meeting.

SECTION 2.07.        Voting.

When a quorum is present at any meeting of the stockholders, the vote of the holders of a majority of the shares entitled to vote on the

subject matter and present in person or represented by proxy shall decide any question brought before such meeting, unless the question

is one upon which, by express provision of applicable statutes, 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. Except as otherwise provided

in the Certificate of Incorporation, each stockholder entitled to vote at any meeting of the stockholders shall be entitled to one vote

for each share of capital stock held by the stockholder.

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SECTION 2.08.        Proxies.

Each stockholder entitled to vote at a meeting of the stockholders may authorize, by an instrument in writing subscribed by such stockholder,

bearing a date not more than three (3) years prior to voting, unless such instrument provides for a longer period, and filed with

the Secretary of the corporation before, or at the time of the meeting, another person or persons to act for him by proxy.

SECTION 2.09.        Consent

of Stockholders. Unless otherwise provided in the Certificate of Incorporation, any action required to be taken at any annual or special

meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may

be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall

be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or

take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the

corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented

in writing. For the purposes of this Section 2.09 to the extent permitted by law, an electronic transmission consenting to an action

to be taken and transmitted by a stockholder or proxyholder, or by a person or persons authorized to act for a stockholder or proxyholder,

shall be deemed to be written, signed and dated as of the date on which such writing or other electronic transmission is transmitted.

SECTION 2.10.        Voting

of Stock of Certain Holders. Shares of the corporation’s capital stock standing in the name of another business entity, domestic

or foreign, may be voted by such officer, agent, or proxy as the bylaws or applicable governance document of such business entity may

prescribe, or in the absence of such provision, as the board of directors or applicable managers of such business entity may determine.

Shares standing in the name of a deceased person may be voted by the executor or administrator of such deceased person, either in person

or by proxy. Shares standing in the name of a guardian, conservator, or trustee may be voted by such fiduciary, either in person or by

proxy, but no such fiduciary shall be entitled to vote shares held in such fiduciary capacity without a transfer of such shares into the

name of such fiduciary. Shares standing in the name of a receiver may be voted by such receiver, either in person or by proxy. A stockholder

whose shares are pledged shall be entitled to vote such shares, unless in the transfer by the pledgor on the books of the corporation,

such stockholder has expressly empowered the pledgee to vote thereon, in which case only the pledgee, or its proxy, may represent the

stock and vote thereon.

SECTION 2.11.        Treasury

Stock. The corporation shall not vote, directly or indirectly, shares of its own capital stock owned by it; and such shares shall

not be counted in determining the total number of outstanding shares of the corporation’s capital stock.

SECTION 2.12.        Fixing

Record Date. The Board of Directors may fix in advance a date, which shall not be more than sixty (60) days nor less than ten

(10) days preceding the date of any meeting of stockholders, nor more than sixty (60) days preceding the date for payment of

any dividend or distribution, or the date for the allotment of rights, or the date when any change, or conversion or exchange of

capital stock shall go into effect, or a date in connection with obtaining a consent, as a record date for the determination of the

stockholders entitled to notice of, and to vote at, any such meeting and any adjournment thereof, or entitled to receive payment of

any such dividend or distribution, or to receive any such allotment of rights, or to exercise the rights in respect of any such

change, conversion or exchange of capital stock, or to give such consent, and in such case such stockholders and only such

stockholders as shall be stockholders of record on the date so fixed, shall be entitled to such notice of, and to vote at, any such

meeting and any adjournment thereof, or to receive payment of such dividend or distribution, or to receive such allotment of rights,

or to exercise such rights, or to give such consent, as the case may be, notwithstanding any transfer of any stock on the books of

the corporation after any such record date fixed as aforesaid.

-3-

ARTICLE III

BOARD OF DIRECTORS

SECTION 3.01.        Powers.

The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors, which may exercise all

such powers of the corporation and do all such lawful acts and things 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 3.02.        Number,

Election and Term. The number of directors that shall constitute the whole Board of Directors shall be not less than one (1). Subject

to the Certificate of Incorporation, such number of directors shall from time to time be fixed and determined by the directors and shall

be set forth in the notice of any meeting of stockholders held for the purpose of electing directors. The directors shall be elected at

the annual meeting of stockholders, except as provided in Section 3.03, and each director elected shall hold office until his or

her successor has been elected and qualified or, if earlier, his or her death, resignation, retirement, disqualification or removal. The

vote of any stockholder on an election of directors may be taken in any manner and no such vote shall be required to be taken by written

ballot or by electronic transmission unless otherwise required by law. Directors need not be residents of the state of Delaware, citizens

of the United States of America or stockholders of the corporation.

SECTION 3.03.        Vacancies,

Additional Directors, and Removal from Office. Unless otherwise provided in the Certificate of Incorporation, and subject to the rights

of the holders of any class or series of capital stock of the corporation pursuant to any stockholders agreement of the corporation, (i) if

any vacancy occurs in the Board of Directors caused by death, resignation, retirement, disqualification, or removal from office of any

director, or otherwise, or if any new directorship is created by an increase in the authorized number of directors, a majority of the

directors then in office, though less than a quorum, or a sole remaining director, may choose a successor or fill the newly created directorship;

and a director so chosen shall hold office until the next election and until his or her successor shall be duly elected and shall qualify,

unless sooner displaced, and (ii) any director may be removed either for or without cause at any special meeting of stockholders

duly called and held for such purpose.

SECTION 3.04.        Resignation.

Any director may resign at any time upon notice given in writing or by electronic transmission to the corporation. A resignation

from the Board of Directors shall be deemed to take effect immediately upon receipt by the corporation of such notice or at a later

time, or upon the occurrence of a later event or events, as the director may specify in the notice.

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SECTION 3.05.        Regular

Meetings. A regular meeting of the Board of Directors shall be held each year, without other notice than this Section 3.05, at

the place of, and immediately following, the annual meeting of stockholders; and other regular meetings of the Board of Directors may

be held at such places (within or without the state of Delaware), if any, and at such times as the Board of Directors may provide, by

resolution, without other notice than such resolution.

SECTION 3.06.        Special

Meetings. A special meeting of the Board of Directors may be called by the Chairman of the Board of Directors, by the President of

the corporation or the Chief Executive Officer of the corporation. Further, the Secretary shall call a special meeting of the Board of

Directors on the written request of any director. Notice of special meetings of the Board of Directors shall be given to each director

at least forty-eight (48) hours prior to the time of such meeting and shall be given in writing or by electronic transmission. Each such

notice shall state the time and place (within or without the state of Delaware), if any, of the meeting but need not state the purposes

thereof, except that notice shall be given of any proposed amendment to the bylaws if it is to be adopted at any special meeting or with

respect to any other matter where notice is required by statute or by these bylaws.

SECTION 3.07.        Quorum.

The greater of the majority of the directors in office or one-third (1/3) of the total number of directors shall constitute a quorum for

the transaction of business at any meeting of the Board of Directors, and the act of a majority of the directors present at any meeting

at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by the Delaware

General Corporation Law (the “DGCL”), by the Certificate of Incorporation or by these bylaws. If a quorum shall not

be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without

notice other than announcement at the meeting, until a quorum shall be present.

SECTION 3.08.        Communications.

Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such board or committee by means of

conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each

other, and participation in a meeting pursuant to this Section 3.08 shall constitute presence in person at such meeting.

SECTION 3.09.        Action

Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these bylaws, any action required or permitted

to be taken at any meeting of the Board of Directors, or of any committee thereof may be taken without a meeting, if all the members of

the Board of Directors or of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing

or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or such committee.

Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained

in electronic form.

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SECTION 3.10.        Compensation.

Unless otherwise restricted by the Certificate of Incorporation or these bylaws, the Board of Directors shall have the authority to fix

the compensation of directors. In addition, the directors may be paid their expenses, if any, of attendance at each meeting of the Board

of Directors. Nothing herein shall preclude any director from serving the corporation in any other capacity and receiving compensation

therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings or serving on such

committees.

ARTICLE IV

COMMITTEES

SECTION 4.01.        Designation,

Powers and Name. The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, designate one or

more committees, including, if they shall so determine, an Executive Committee, each such committee to consist of one or more of the directors

of the corporation. Unless prohibited by Section 141(c) of the DGCL, the committee shall have and may exercise such of the powers

of the Board of Directors in the management of the business and affairs of the corporation as may be provided in such resolution. The

committee may authorize the seal of the corporation (if any) to be affixed to all papers that may require it. The Board of Directors may

designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting

of such committee. In the absence or disqualification of any member of such committee or committees, the member or members thereof present

at any meeting and not disqualified from voting, whether or not he, she, or they constitute a quorum, may unanimously appoint another

member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Such committee or committees

shall have such name or names and such limitations of authority as may be determined from time to time by resolution adopted by the Board

of Directors.

SECTION 4.02.        Minutes.

Each committee of the Board of Directors shall keep regular minutes of its proceedings and actions and report on its proceedings and actions

to the Board of Directors when required.

ARTICLE V

NOTICE

SECTION 5.01.        Methods

of Giving Notice. Whenever, under the provisions of applicable statutes, the Certificate of Incorporation or these bylaws,

notice is required to be given to any director, member of any committee or stockholder, it shall not be necessary that personal

notice be given, and such notice may be given in writing, by mail, addressed to such director, member, or stockholder at his, her or

its address as it appears on the records of the corporation or at his, her or its residence or usual place of business, with postage

thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited with the United States

Postal Service. Notice also may be given in any other proper form, as authorized by the DGCL. Notice that is given by facsimile

shall be deemed delivered when sent to a number at which any director, member or stockholder has consented to receive such notice.

Notice that is given in person or by telephone shall be deemed to be given when the same shall be delivered. Without limiting the

manner by which notice otherwise may be given effectively to any director, member or stockholder, any notice given under any

provision of these bylaws shall be effective if given by a form of electronic transmission consented to by such person. Notice given

by electronic mail shall be deemed delivered when directed to an electronic mail address at which such person has consented to

receive notice and notice given by a posting on an electronic network together with separate notice to such person of such specific

posting shall be deemed delivered upon the later of (a) such posting and (b) the giving of such separate notice. Notice

given by any other form of electronic transmission shall be deemed given when directed to any director, member or stockholder in the

manner consented to by such director, member or stockholder.

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SECTION 5.02.        Consent

to Electronic Notice. Subject to the limitations set forth in Section 232(e) of the DGCL, each stockholder, by

acceptance of his or her certificate for shares of capital stock of the corporation, consents to the delivery of any notice to

stockholders given by the corporation under the DGCL or the Certificate of Incorporation or these bylaws by (i) facsimile

telecommunication to the facsimile number for the stockholder, if any, in the corporation’s records, (ii) electronic mail

to the electronic mail address for the stockholder, if any, in the corporation’s records, (iii) posting on an electronic

network together with separate notice to the stockholder of such specific posting, or (iv) any other form of electronic

transmission (as defined in the DGCL) directed to the stockholder. The foregoing consent may be revoked by a stockholder by written

notice to the corporation and may be deemed revoked in the circumstances specified in DGCL Section 232.

SECTION 5.03.        Waiver.

Whenever any notice is required to be given under the provisions of an applicable statute, the Certificate of Incorporation, or

these bylaws, a waiver thereof in writing, signed by the person or persons entitled to said notice, or a waiver by electronic

transmission by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed

equivalent thereto. 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.

ARTICLE VI

OFFICERS

SECTION 6.01.        Officers.

The officers of the corporation may include the following: a President, one or more Vice Presidents, any one or more of which may be

designated Executive Vice President or Senior Vice President, a Secretary or a Treasurer. The Board of Directors may appoint such

other officers and agents, including a Chairman of the Board of Directors, a Vice Chairman of the Board of Directors, a Chief

Executive Officer, Assistant Vice Presidents, Assistant Secretaries, and Assistant Treasurers, in each case as the Board of

Directors shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties

as shall be determined by the Board of Directors. Any two or more offices may be held by the same person. The Chairman and Vice

Chairman of the Board of Directors, if any, shall be elected from among the directors. With the foregoing exceptions, none of the

other officers need be a director, and none of the officers need be a stockholder of the corporation.

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SECTION 6.02.        Election

and Term of Office. The officers of the corporation shall be elected annually by the Board of Directors at its first regular meeting

held after the annual meeting of stockholders or as soon thereafter as conveniently possible. Each officer shall hold office until his

or her successor shall have been elected and shall have qualified or until his or her death or the effective date of his or her resignation

or removal, or until he or she shall cease to be a director in the case of the Chairman and the Vice Chairman.

SECTION 6.03.        Removal

and Resignation. Any officer elected by the Board of Directors may be removed with or without cause, for any or no reason, at any

time by the Board of Directors. Any officer may resign at any time by giving written notice to the corporation. Any such resignation shall

take effect at the date of the receipt of such notice or at any later time specified therein, and unless otherwise specified therein,

the acceptance of such resignation shall not be necessary to make it effective.

SECTION 6.04.        Vacancies.

Any vacancy occurring in any office of the corporation by death, resignation, removal, or otherwise, may be filled by the Board of Directors

for the unexpired portion of the term.

SECTION 6.05.        Salaries.

The compensation of all officers and agents of the corporation shall be fixed by the Board of Directors or pursuant to its direction;

and no officer shall be prevented from receiving such salary by reason of his or her also being a director.

SECTION 6.06.        Chairman

of the Board of Directors. The Chairman of the Board of Directors (if such office is created by the Board of Directors) shall preside

at all meetings of the Board of Directors or of the stockholders of the corporation. The Chairman shall formulate and submit to the Board

of Directors or the Executive Committee matters of general policy for the corporation and shall perform such other duties as such duties

customarily pertain to the office or as may be prescribed by the Board of Directors or the Executive Committee.

SECTION 6.07.        Vice Chairman

of the Board of Directors. The Vice Chairman of the Board of Directors (if such office is created by the Board of Directors) shall,

in the absence or disability of the Chairman of the Board of Directors, perform the duties and exercise the powers of the Chairman of

the Board of Directors. The Vice Chairman shall perform such other duties as from time to time may be prescribed by the Board of Directors

or the Executive Committee or assigned by the Chairman of the Board of Directors.

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SECTION 6.08.        President;

Chief Executive Officer. The President and the Chief Executive Officer (if such office is created by the Board of Directors),

which posts may be held by the same or different persons, shall be the chief executive officers of the corporation and, subject to

the control of the Board of Directors, shall in general supervise and control the business and affairs of the corporation. In the

absence of the Chairman of the Board of Directors or the Vice Chairman of the Board of Directors (if such offices are created by the

Board of Directors), the President or the Chief Executive Officer shall preside at all meetings of the Board of Directors and of the

stockholders. Either such person may also preside at any such meeting attended by the Chairman or Vice Chairman of the Board of

Directors if he or she is so designated by the Chairman, or in the Chairman’s absence by the Vice Chairman. Both shall have

the power to appoint and remove subordinate officers, agents, and employees, except those elected or appointed by the Board of

Directors. The President and the Chief Executive Officer both shall keep the Board of Directors and the Executive Committee fully

informed and shall consult them concerning the business of the corporation. Either may sign certificates for shares of the

corporation and any deeds, bonds, mortgages, contracts, checks, notes, drafts, or other instruments that the Board of Directors has

authorized to be executed, except in cases where the signing and execution thereof has been expressly delegated by these bylaws or

by the Board of Directors to some other officer or agent of the corporation, or shall be required by law to be otherwise executed.

Either shall vote, or give a proxy to any other officer of the corporation to vote, all shares of stock of any other corporation

standing in the name of the corporation and in general he or she shall perform all other duties normally incident to the office of

President or Chief Executive Officer, as the case may be, and such other duties as may be prescribed by the stockholders, the Board

of Directors or the Executive Committee from time to time.

SECTION 6.09.        Vice Presidents.

In the absence of the President and the Chief Executive Officer, or in the event of their inability or refusal to act, the Executive Vice

President (or in the event there shall be no Vice President designated Executive Vice President, any Vice President designated by the

Board of Directors) shall perform the duties and exercise the powers of the President and the Chief Executive Officer. Any Vice President

may sign, with the Secretary or Assistant Secretary, certificates for shares of the corporation. The Vice Presidents shall perform such

other duties as from time to time may be assigned to them by the President, the Chief Executive Officer or the Board of Directors.

SECTION 6.10.        Secretary.

The Secretary shall (a) keep the minutes of the meetings of the stockholders, the Board of Directors and committees of

directors; (b) see that all notices are duly given in accordance with the provisions of these bylaws and as required by law;

corporation or a facsimile thereof (if any), is affixed to all certificates for shares prior to the issue thereof and to all

documents, the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions

of these bylaws; (d) keep or cause to be kept a register of the post office address and electronic mail address (if provided)

of each stockholder which shall be furnished by such stockholder; (e) sign with the President, the Chief Executive Officer or

an Executive Vice President or Vice President, certificates for shares of the corporation, the issue of which shall have been

authorized by resolution of the Board of Directors; (f) have general charge of the stock transfer books of the corporation and

(g) in general, perform all duties normally incident to the office of Secretary and such other duties as from time to time may

be assigned to him by the President, the Chief Executive Officer or the Board of Directors.

SECTION 6.11.        Treasurer.

If required by the Board of Directors, the Treasurer shall give a bond for the faithful discharge of his or her duties in such sum

and with such surety or sureties as the Board of Directors shall determine. He or she shall (a) have charge and custody of and

be responsible for all funds and securities of the corporation; (b) receive and give receipts for moneys due and payable to the

corporation from any source whatsoever and deposit all such moneys 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 7.03 of these bylaws; (c) prepare, or

cause to be prepared, for submission at each regular meeting of the Board of Directors, at each annual meeting of the stockholders,

and at such other times as may be required by the Board of Directors, the President, or the Chief Executive Officer, a statement of

financial condition of the corporation in such detail as may be required; and (d) in general, perform all the duties incident

to the office of Treasurer and such other duties as from time to time may be assigned to him by the President, the Chief Executive

Officer or the Board of Directors.

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SECTION 6.12.        Assistant

Secretary and Treasurer. The Assistant Secretaries and Assistant Treasurers shall, in general, perform such duties as shall be assigned

to them by the Secretary or the Treasurer, respectively, or by the President, the Chief Executive Officer, the Board of Directors, or

the Executive Committee. The Assistant Secretaries and Assistant Treasurers shall, in the absence of the Secretary or Treasurer, respectively,

perform all functions and duties which such absent officers may delegate, but such delegation shall not relieve the absent officer from

the responsibilities and liabilities of his or her office. The Assistant Secretaries may sign, with the President, the Chief Executive

Officer or a Vice President, certificates for shares of the corporation, the issue of which shall have been authorized by a resolution

of the Board of Directors. The Assistant Treasurers shall respectively, if required by the Board of Directors, give bonds for the faithful

discharge of their duties in such sums and with such sureties as the Board of Directors shall determine.

ARTICLE VII

CONTRACTS, CHECKS AND DEPOSITS

SECTION 7.01.        Contracts.

The Board of Directors may authorize any officer, officers, agent, or agents, to enter into or execute or affix the seal of the corporation

or a facsimile thereof (if any) to, any contract and deliver any instrument in the name of and on behalf of the corporation, and such

authority may be general or confined to specific instances.

SECTION 7.02.        Checks.

All checks, demands, drafts, or other orders for the payment of money, notes, or other evidences of indebtedness issued in the name of

the corporation, shall be signed by such officer or officers or such agent or agents of the corporation, and in such manner, as shall

be determined by the Board of Directors.

SECTION 7.03.        Deposits.

All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks,

trust companies, or other depositories as the Board of Directors may select.

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ARTICLE VIII

CERTIFICATES OF STOCK

SECTION 8.01.        Certificates.

The shares of the corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution or

resolutions that some or all of any or all classes or series of stock shall be uncertificated shares. Any such resolution shall not apply

to shares represented by a certificate until such certificate is surrendered to the corporation. Every holder of stock represented by

certificates shall be entitled to have a certificate signed by or in the name of the corporation by the Chairman or Vice Chairman of the

Board of Directors, if any, or the Chief Executive Officer, President or a Vice President, and by the Treasurer or an Assistant Treasurer,

or the Secretary or an Assistant Secretary, of the corporation certifying the number of shares owned by such holder in the corporation.

Any of or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or

whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before

such certificate is issued, it may be issued by the corporation with the same effect as if such person were such officer, transfer agent,

or registrar at the date of issue.

SECTION 8.02.        Lost Certificates.

The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore

issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person

claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the

Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require (a) the owner of such lost,

stolen, or destroyed certificate or certificates, or his or her legal representative, to advertise the same in such manner as it shall

require, (b) such owner to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made

against the corporation with respect to the certificate or certificates alleged to have been lost, stolen, or destroyed, or (c) both

requirements set forth in (a) and (b) of this Section 8.02.

SECTION 8.03.        Transfers.

Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares (if certificated) duly endorsed

or such other proper evidence of succession, assignment, or authority to transfer, it shall be the duty of the corporation to issue a

new certificate to the person entitled thereto, cancel the old certificate, in each case, if certificated, and record the transaction

upon its books. Transfers of shares shall be made only on the books of the corporation by the registered holder thereof, or by his or

her attorney thereunto authorized by power of attorney and filed with the Secretary or the transfer agent of the corporation.

SECTION 8.04.        Registered

Stockholders. The corporation shall be entitled to treat the holder of record of any share or shares of the corporation’s capital

stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such

share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided

by the laws of the state of Delaware.

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ARTICLE IX

DIVIDENDS

SECTION 9.01.        Declaration.

Subject to the provisions of the Certificate of Incorporation, if any, dividends with respect to the shares of the corporation’s

capital stock may be declared by the Board of Directors at any regular or special meeting, pursuant to applicable law. Dividends may be

paid in cash, in property, or in shares of capital stock, subject to the provisions of the Certificate of Incorporation.

SECTION 9.02.        Reserve.

Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as

the Board of Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or

for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the Board of Directors

shall think conducive to the interest of the corporation, and the Board of Directors may modify or abolish any such reserve in the manner

in which it was created.

ARTICLE X

INDEMNIFICATION

SECTION 10.01.      Directors

and Executive Officers. The corporation shall indemnify its directors and executive officers (for the purposes of this

Article X, “executive officers” shall have the meaning defined in Rule 3b-7 promulgated under the Securities

Exchange Act of 1934, as amended, to the extent not prohibited by the DGCL or any other applicable law; provided, however, that the

corporation may modify the extent of such indemnification by individual contracts with its directors and executive officers; and,

provided, further, that the corporation shall not be required to indemnify any director or executive officer in connection with any

proceeding (or part thereof) initiated by such person unless (i) such indemnification is expressly required to be made by law,

(ii) the proceeding was authorized by the Board of Directors of the corporation, (iii) such indemnification is provided by

the corporation, in its sole discretion, pursuant to the powers vested in the corporation under the DGCL or any other applicable law

or (iv) such indemnification is required to be made under Section 10.04.

SECTION 10.02.      Other

Officers, Employees and Other Agents. The corporation shall have power to indemnify its other officers, employees and other agents

as set forth in the DGCL or any other applicable law. The Board of Directors shall have the power to delegate the determination of whether

indemnification shall be given to any such person except executive officers to such officers or other persons as the Board of Directors

shall determine.

SECTION 10.03.      Expenses.

The corporation shall advance to any person who was or is a party or is threatened to be made a party to any threatened, pending or

completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or

was a director or executive officer, of the corporation, or is or was serving at the request of the corporation as a director or

executive officer of another corporation, partnership, joint venture, trust or other enterprise, prior to the final disposition of

the proceeding, promptly following request therefor, all expenses incurred by any director or executive officer in connection with

such proceeding provided, however, that if the DGCL requires, an advancement of expenses incurred by a director or executive officer

in his or her capacity as a director or executive officer (and not in any other capacity in which service was or is rendered by such

indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the corporation

of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced

if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a

“final adjudication”) that such indemnitee is not entitled to be indemnified for such expenses under this section or

otherwise.

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Notwithstanding the

foregoing, unless otherwise determined pursuant to Section 10.05, no advance shall be made by the corporation to an executive

officer of the corporation (except by reason of the fact that such executive officer is or was a director of the corporation in

which event this paragraph shall not apply) in any action, suit or proceeding, whether civil, criminal, administrative or

investigative, if a determination is reasonably and promptly made (i) by a majority vote of directors who were not parties to

the proceeding, even if not a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors,

even though less than a quorum, or (iii) if there are no such directors, or such directors so direct, by independent legal

counsel in a written opinion, that the facts known to the decision-making party at the time such determination is made demonstrate

clearly and convincingly that such person acted in bad faith or in a manner that such person did not believe to be in or not opposed

to the best interests of the corporation.

SECTION 10.04.     Enforcement.

Without the necessity of entering into an express contract, all rights to indemnification and advances to directors and executive

officers under this bylaw shall be deemed to be contractual rights and be effective to the same extent and as if provided for in a

contract between the corporation and the director or executive officer. Any right to indemnification or advances granted by this

section to a director or executive officer shall be enforceable by or on behalf of the person holding such right in any court of

competent jurisdiction if (i) the claim for indemnification or advances is denied, in whole or in part, or (ii) no

disposition of such claim is made within ninety (90) days of request therefor. To the extent permitted by law, the claimant in such

enforcement action, if successful in whole or in part, shall be entitled to be paid also the expense of prosecuting the claim. In

connection with any claim for indemnification, the corporation shall be entitled to raise as a defense to any such action that the

claimant has not met the standards of conduct that make it permissible under the DGCL or any other applicable law for the

corporation to indemnify the claimant for the amount claimed. In connection with any claim by an executive officer of the

corporation (except in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the

fact that such executive officer is or was a director of the corporation) for advances, the corporation shall be entitled to raise a

defense as to any such action clear and convincing evidence that such person acted in bad faith or in a manner that such person did

not believe to be in or not opposed to the best interests of the corporation, or with respect to any criminal action or proceeding

that such person acted without reasonable cause to believe that his conduct was lawful. Neither the failure of the corporation

(including its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to the

commencement of such action that indemnification of the claimant is proper in the circumstances because he has met the applicable

standard of conduct set forth in the DGCL or any other applicable law, nor an actual determination by the corporation (including its

Board of Directors, independent legal counsel or its stockholders) that the claimant has not met such applicable standard of

conduct, shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct. In

any suit brought by a director or executive officer to enforce a right to indemnification or to an advancement of expenses

hereunder, the burden of proving that the director or executive officer is not entitled to be indemnified, or to such advancement of

expenses, under this section or otherwise shall be on the corporation.

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SECTION 10.05.      Non-Exclusivity

of Rights. The rights conferred on any person by this bylaw shall not be exclusive of any other right which such person may have or

hereafter acquire under any applicable statute, provision of the Certificate of Incorporation, bylaws, agreement, vote of stockholders

or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding

office. The corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees

or agents respecting indemnification and advances, to the fullest extent not prohibited by the DGCL, or by any other applicable law.

SECTION 10.06.      Survival

of Rights. The rights conferred on any person by this bylaw shall continue as to a person who has ceased to be a director or executive

officer and shall inure to the benefit of the heirs, executors and administrators of such a person.

SECTION 10.07.      Insurance.

To the fullest extent permitted by the DGCL or any other applicable law, the corporation, upon approval by the Board of Directors, may

purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this section.

SECTION 10.08.      Amendments.

Any repeal or modification of this section shall only be prospective and shall not affect the rights under this bylaw in effect at the

time of the alleged occurrence of any action or omission to act that is the cause of any proceeding against any agent of the corporation.

SECTION 10.09.      Saving

Clause. If this Article X or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then

the corporation shall nevertheless indemnify each director and executive officer to the full extent not prohibited by any applicable portion

of this Article X that shall not have been invalidated, or by any other applicable law. If this Article X shall be invalid due

to the application of the indemnification provisions of another jurisdiction, then the corporation shall indemnify each director and executive

officer to the full extent under any other applicable law.

SECTION 10.10.      Certain

Definitions. For the purposes of this Article X, the following definitions shall apply:

(i) The

term “proceeding” shall be broadly construed and shall include, without limitation, the investigation, preparation,

prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened, pending or completed

action, suit or proceeding, whether civil, criminal, administrative or investigative.

-14-

(ii) The

term “expenses” shall be broadly construed and shall include, without limitation, court costs, attorneys’ fees,

witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any nature or kind incurred in

connection with any proceeding.

(iii)

The term the “corporation” shall include, in addition to the resulting corporation, any constituent corporation

(including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued,

would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a

director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent

corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise,

shall stand in the same position under the provisions of this section with respect to the resulting or surviving corporation as he

would have with respect to such constituent corporation if its separate existence had continued.

(iv) References

to a “director,” “executive officer,” “officer,” “employee,” or “agent”

of the corporation shall include, without limitation, situations where such person is serving at the request of the corporation as,

respectively, a director, executive officer, officer, employee, trustee or agent of another corporation, partnership, joint venture,

trust or other enterprise.

(v) References

to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise

taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the

corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on,

or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or

beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants

and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of

the corporation” as referred to in this section.

ARTICLE XI

MISCELLANEOUS

SECTION 11.01.      Seal.

The corporate seal, if one is authorized by the Board of Directors, shall have inscribed thereon the name of the corporation, and the

words “Corporate Seal, Delaware.” The seal may be used by causing it or a facsimile thereof to be impressed or affixed or

otherwise reproduced.

SECTION 11.02.      Books.

The books of the corporation may be kept (subject to any provision contained in the statutes) outside the state of Delaware at the offices

of the corporation, or at such other place or places as may be designated from time to time by the Board of Directors.

-15-

ARTICLE XII

SECTION HEADINGS

The headings contained in these

bylaws are for reference purposes only and shall not be construed to be part of and shall not affect in any way the meaning or interpretation

of these bylaws.

ARTICLE XIII

AMENDMENT

These bylaws may be altered,

amended, or repealed or new bylaws may be adopted by a majority of the number of directors then constituting the Board of Directors at

any regular meeting of the Board of Directors without prior notice, or at any special meeting of the Board of Directors if notice of such

alteration, amendment, or repeal be contained in the notice of such special meeting. Notwithstanding the foregoing, the fact that such

power has been so conferred upon the Board of Directors shall not divest the stockholders of the power, nor limit their power to adopt,

amend or repeal these bylaws.

* * End * *

-16-

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