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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 event reported): February 3, 2025
SecureWorks Corp.
(Exact name of registrant as specified in its charter)
|
Delaware
|
001-37748
|
27-0463349
|
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
|
One Concourse Parkway NE
Suite 500
Atlanta, Georgia
|
|
30328
|
| (Address of principal executive offices) |
|
(Zip Code) |
Registrant’s telephone number, including area
code: (404) 327-6339
Not Applicable
(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 |
|
Class A Common Stock,
par value $0.01 per share |
|
SCWX |
|
The Nasdaq Stock Market LLC
(Nasdaq Global Select Market) |
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.
This Current Report on Form 8-K
(this “Current Report”) is being filed in connection with the consummation, on February 3, 2025 (the “Closing Date”),
of the Merger (as defined below) pursuant to that certain Agreement and Plan of Merger (the “Merger Agreement”) by and among
SecureWorks Corp., a Delaware corporation (the “Company”), Sophos Inc., a Massachusetts corporation (“Parent”)
and Project Green Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and a direct, wholly owned subsidiary of Parent
(“Merger Sub” and together with Parent, the “Buyer Parties”). Pursuant to the Merger Agreement, Merger Sub merged
with and into the Company, with the Company continuing as the surviving corporation and becoming a wholly owned subsidiary of Parent (the
“Merger”). Capitalized terms used herein but not otherwise defined have the meaning set forth in the Merger Agreement.
| Item 1.02. | Termination of a Material Definitive Agreement. |
Concurrently with the closing
of the Merger, SecureWorks, Inc., a subsidiary of the Company, paid all outstanding fees and expenses and terminated all credit commitments
outstanding under that certain Sixth Amended and Restated Revolving Credit Agreement (the “Revolving Credit Agreement”) dated
as of March 23, 2023, as amended by that certain First Amendment to Sixth Amended and Restated Revolving Credit Agreement dated as of
September 6, 2023, among SecureWorks, Inc., a Georgia corporation, as borrower, and Dell USA L.P., a Texas limited partnership and a wholly
owned subsidiary of Dell Inc., as lender, and the Revolving Credit Agreement was terminated.
| Item 2.01. | Completion of Acquisition or Disposition of Assets. |
The information set forth
in the Introductory Note and in Items 3.03, 5.01, 5.02 and 5.03 of this Current Report is incorporated herein by reference.
At the effective time of
the Merger (the “Effective Time”), each share of Class A common stock of the Company, par value $0.01 per share (the “Class
A Common Stock”) and Class B common stock of the Company, par value $0.01 per share (the “Class B Common Stock” and
together with Class A Common Stock, the “Company Common Stock”) that is issued and outstanding as of immediately prior to
the Effective Time (other than Dissenting Shares or shares of Company Common Stock (i) held in the Company’s treasury, (ii) owned
by Parent, Merger Sub or their respective direct or indirect wholly owned subsidiaries or (iii) owned by any direct or indirect wholly
owned subsidiary of the Company) was converted into the right to receive cash in an amount equal to $8.50, without interest thereon and
less any applicable Tax withholdings (the “Per Share Amount”).
Pursuant to the Merger
Agreement, at the Effective Time, by virtue of the Merger:
| (i) | each (a) Vested Company Stock Option outstanding immediately prior to the Effective Time was canceled
as of immediately prior to the Effective Time (without regard to the exercise price of such Vested Company Stock Option) in exchange for
the right to receive a lump-sum cash payment, less applicable Tax withholdings, in the amount of the Option Consideration, if any, with
respect to such Vested Company Stock Option and (b) Unvested Company Stock Option outstanding immediately prior to the Effective Time
was canceled as of immediately prior to the Effective Time (without regard to the exercise price of such Unvested Company Stock Option)
in exchange for the right to receive an aggregate amount in cash, without interest, less applicable Tax withholdings in the amount of
the Option Consideration, if any, with respect to such Unvested Company Stock Option and which will vest and become payable subject to
such Unvested Company Stock Option’s terms, conditions and vesting schedule (including time-based or service-based vesting conditions
and any terms related to vesting acceleration upon termination of employment and change in control treatment), except that if the per-share
exercise price of any such Company Stock Option, whether vested or unvested, was equal to or greater than the Per Share Amount, such Company
Stock Option was canceled and terminated without any cash payment being made in respect thereof; |
| (ii) | each (a) Vested Company Restricted Share outstanding immediately prior to the Effective Time was canceled
and converted into the right to receive an amount in cash equal to the Per Share Amount less applicable Tax withholdings and (b) Unvested
Company Restricted Share outstanding |
| | immediately prior to the Effective Time was canceled as of immediately prior to the Effective Time
in exchange for the right to receive an aggregate amount in cash equal to the Per Share Amount, less applicable Tax withholdings, that
will vest and become payable subject to such Unvested Company Restricted Share’s terms, conditions and vesting schedule (including
time-based or service-based vesting conditions and any terms related to vesting acceleration upon termination of employment and change
in control treatment); |
| (iii) | each (a) Vested Company RSU award outstanding immediately prior to the Effective Time was canceled as
of immediately prior to the Effective Time in exchange for the right to receive, in full satisfaction of the rights of such holder with
respect thereto, a lump-sum cash payment equal to the Per Share Amount less applicable Tax withholdings multiplied by the aggregate number
of Shares of Company Common Stock subject to such Vested Company RSU award immediately before the Effective Time and (b) Unvested Company
RSU award outstanding immediately prior to the Effective Time was canceled as of immediately prior to the Effective Time in exchange for
the right to receive an aggregate amount in cash equal to the Per Share Amount less applicable Tax withholdings multiplied by the aggregate
number of Shares of Company Common Stock subject to such Unvested Company RSU award immediately before the Effective Time that will vest
and become payable subject to such Unvested Company RSU award’s terms, conditions and vesting schedule (including time-based or
service-based vesting conditions and any terms related to vesting acceleration upon termination of employment and change in control treatment);
and |
| (iv) | each (a) Vested Company PSU award outstanding immediately prior to the Effective Time was canceled as
of immediately prior to the Effective Time in exchange for the right to receive a lump-sum cash payment equal to the Per Share Amount
less applicable Tax withholdings multiplied by the aggregate number of Shares of Company Common Stock subject to such Vested Company PSU
award immediately before the Effective Time and (b) Unvested Company PSU award outstanding immediately prior to the Effective Time was
deemed achieved at the greater of target or actual performance level through the Effective Time and was canceled as of immediately prior
to the Effective Time in exchange for the right to receive an aggregate amount in cash equal to the Per Share Amount less applicable Tax
withholdings multiplied by the aggregate number of Shares of Company Common Stock subject to such Unvested Company PSU award immediately
before the Effective Time that will vest and become payable subject to such Unvested Company PSU award’s terms, conditions and vesting
schedule (excluding any applicable performance-based vesting conditions but including time-based or service-based vesting conditions and
any terms related to vesting acceleration upon termination of employment and change in control treatment). |
The description of the
Merger and the Merger Agreement contained in this Item 2.01 does not purport to be complete and is subject to and qualified in its entirety
by reference to the Merger Agreement, a copy of which is included as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed
with the Securities and Exchange Commission (the “SEC”) on October 21, 2024, and which is incorporated herein by reference.
| Item 3.01. | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
The information set forth in the Introductory
Note and Items 2.01 and 3.03 of this Current Report is incorporated herein by reference.
On February 3, 2025, the
Company: (i) notified the Nasdaq Global Select Market (“Nasdaq”) of the effectiveness of the Merger; and (ii) requested that
Nasdaq (x) suspend trading of the Class A Common Stock prior to the opening of trading on February 4, 2025, and (y) file with the SEC
a Notification of Removal from Listing and/or Registration on Form 25 to delist and deregister the Class A Common Stock under Section
12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on February 3, 2025.
After the Form 25 becomes
effective, the Company intends to file with the SEC a Certification and Notice of Termination of Registration on Form 15 requesting the
deregistration of the Class A Common Stock 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 Class A Common Stock.
| Item 3.03. | Material Modification to Rights of Security Holders. |
The information set forth
in the Introductory Note and under Items 2.01, 3.01, 5.01 and 5.03 of this Current Report is incorporated herein by reference.
| Item 5.01. | Changes in Control of Registrant. |
The information set forth
in the Introductory Note and Items 2.01, 3.03, 5.02 and 5.03 of this Current Report is incorporated herein by reference.
As a result of the consummation
of the Merger on February 3, 2025, a change in control of the Company occurred and the Company became a wholly owned subsidiary of Parent.
| Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers. |
The information set forth
in the Introductory Note and Item 2.01 of this Current Report is incorporated herein by reference.
In accordance with the
terms of the Merger Agreement, (i) each of Michael S. Dell, William Cary, Pamela Daley, Mark J. Hawkins, Kyle Paster, Wendy Thomas and
Yagyensh C. Pati resigned from his or her respective position as a member of the Company’s Board of Directors, and any
committee thereof and (ii) Donald Blach, James Dildine, Ira Heffan and Joseph Levy became directors of the Company, in each case, effective
as of the Effective Time.
In accordance with the
terms of the Merger Agreement, the officers of the Company immediately prior to the Effective Time will remain officers of the Company
following the Merger.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year. |
The information set forth
in the Introductory Note and Item 2.01 of this Current Report is incorporated herein by reference.
In accordance with the
terms of the Merger Agreement, as of the Effective Time, the Company’s certificate of incorporation and its bylaws, as in effect
immediately prior to the Effective Time, were each amended and restated in their entirety, as set forth in Exhibits 3.1 and 3.2, respectively,
to this Current Report, and are incorporated herein by reference.
On February 3, 2025, the
Company and Parent issued a joint press release announcing the completion of the Merger. A copy of the joint press release is attached
as Exhibit 99.1 and incorporated herein by reference.
| Item 9.01. |
Financial Statements and Exhibits. |
(d) Exhibits
| * |
The schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish supplementally a copy of such schedules and exhibits, or any section thereof, to the SEC upon request. |
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 thereunto duly authorized.
| |
SecureWorks Corp. |
|
| |
|
|
|
| |
|
|
|
Date: February 3, 2025 |
By: |
/s/ Alpana Wegner |
|
| |
Name: |
Alpana Wegner |
|
| |
Title: |
Chief Financial Officer |
|
| |
|
(Duly Authorized Officer) |
|
EXHIBIT 3.1
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
SECUREWORKS CORP.
FIRST: The name of the
Corporation is SecureWorks Corp. (hereinafter the "Corporation").
SECOND: The address of
the registered office of the Corporation in the State of Delaware is 251 Little Falls Drive, in the City of Wilmington, County of New
Castle, 19808. The name of its registered agent at that address is Corporation Service Company.
THIRD: The purpose of
the Corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law
of the State of Delaware as set forth in Title 8 of the Delaware Code (the "DGCL").
FOURTH: The total number
of shares of stock which the Corporation shall have authority to issue is one thousand (1,000) shares of Common Stock, each having a par
value of $0.0001.
FIFTH: The following provisions
are inserted for the management of the business and the conduct of the affairs of the Corporation, and for further definition, limitation
and regulation of the powers of the Corporation and of its directors and stockholders:
(1)
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
(2) The
directors shall have concurrent power with the stockholders to make, alter, amend, change, add to or repeal the Bylaws of the Corporation.
(3)
The number of directors of the Corporation shall be as from time to time fixed by, or in the manner provided in, the Bylaws of the Corporation.
Election of directors need not be by written ballot unless the Bylaws of the Corporation so provide.
(4) A
director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to the Corporation or its stockholders,
(2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) under Section 174
of the DGCL or (4) for any transaction from which the director derived any improper personal benefit. If the DGCL is amended after the
filing of this Certificate of Incorporation to authorize corporate action further eliminating or limiting the personal liability of directors,
then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so
amended. No modification or repeal of the provisions of this Article FIFTH shall adversely affect any right or protection of any director
of the Corporation existing at the date of such modification or repeal or create any liability or adversely affect any such right or protection
for any acts or omissions of such director occurring prior to such modification or repeal.
(5) In
addition to the powers and authority hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise
all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions
of the DGCL, this Certificate of Incorporation, and any Bylaws adopted by the stockholders; provided, however, that no Bylaws hereafter
adopted by the stockholders shall invalidate any prior act of the directors which would have been valid if such Bylaws had not been adopted.
SIXTH: Meetings of stockholders
may be held within or without the State of Delaware, as the Bylaws may provide. The books of the Corporation may be kept (subject to any
provision contained in the DGCL) outside the State of Delaware at such place or places as may be designated from time to time by the Board
of Directors or in the Bylaws of the Corporation.
SEVENTH: The Corporation
reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or
hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation.
[Remainder of Page Intentionally Left Blank]
EXHIBIT 3.2
SECOND AMENDED AND RESTATED
BYLAWS
OF
SECUREWORKS CORP.
A Delaware Corporation
Adopted February 3, 2025
TABLE OF CONTENTS
Page
ARTICLE I
OFFICES
| Section 1. |
Registered Office |
1 |
| Section 2. |
Other Offices |
1 |
ARTICLE II
MEETINGS OF STOCKHOLDERS
| Section 1. |
Place of Meetings |
1 |
| Section 2. |
Annual Meetings |
1 |
| Section 3. |
Special Meetings |
1 |
| Section 4. |
Notice |
1 |
| Section 5. |
Adjournments |
2 |
| Section 6. |
Quorum |
2 |
| Section 7. |
Voting |
2 |
| Section 8. |
Proxies |
2 |
| Section 9. |
Consent of Stockholders in Lieu of Meeting |
2 |
| Section 10. |
List of Stockholders Entitled to Vote |
3 |
| Section 11. |
Record Date. |
3 |
| Section 12. |
Stock Ledger |
4 |
| Section 13. |
Conduct of Meetings |
4 |
| Section 14. |
Inspectors of Election |
4 |
ARTICLE III
DIRECTORS
| Section 1. |
Number and Election of Directors |
4 |
| Section 2. |
Vacancies |
4 |
| Section 3. |
Duties and Powers |
5 |
| Section 4. |
Meetings |
5 |
| Section 5. |
Organization |
5 |
| Section 6. |
Resignations and Removals of Directors |
5 |
| Section 7. |
Quorum |
5 |
| Section 8. |
Actions of the Board by Written Consent |
6 |
| Section 9. |
Meetings by Means of Conference Telephone |
6 |
| Section 10. |
Committees |
6 |
| Section 11. |
Compensation |
7 |
| Section 12. |
Interested Directors |
7 |
ARTICLE IV
OFFICERS
| Section 1. |
General |
7 |
| Section 2. |
Election |
7 |
| Section 3. |
Voting Securities Owned by the Corporation |
8 |
| Section 4. |
Chairman of the Board of Directors |
8 |
| Section 5. |
President |
8 |
| Section 6. |
Vice Presidents |
8 |
| Section 7. |
Secretary |
8 |
| Section 8. |
Treasurer |
8 |
| Section 9. |
Assistant Secretaries |
9 |
| Section 10. |
Assistant Treasurers |
9 |
| Section 11. |
Other Officers |
9 |
ARTICLE V
STOCK
| Section 1. |
Certificates |
9 |
| Section 2. |
Signatures |
9 |
| Section 3. |
Lost Certificates |
9 |
| Section 4. |
Transfers |
10 |
| Section 5. |
Dividend Record Date |
10 |
| Section 6. |
Record Owners |
10 |
| Section 7. |
Transfer and Registry Agents |
10 |
ARTICLE VI
NOTICES
| Section 1. |
Notices |
10 |
| Section 2. |
Waivers of Notice |
11 |
ARTICLE VII
GENERAL PROVISIONS
| Section 1. |
Dividends |
11 |
| Section 2. |
Disbursements |
11 |
| Section 3. |
Fiscal Year |
11 |
| Section 4. |
Corporate Seal |
11 |
ARTICLE VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
| Section 1. |
Right to Indemnification |
11 |
| Section 2. |
Right to Advancement of Expenses |
12 |
| Section 3. |
Claims |
12 |
| Section 4. |
Non-exclusivity of Rights |
12 |
| Section 5. |
Other Sources |
12 |
| Section 6. |
Amendment or Repeal |
12 |
| Section 7. |
Insurance |
13 |
| Section 8. |
Other Indemnification and Prepayment of Expenses |
13 |
ARTICLE IX
AMENDMENTS
| Section 1. |
Amendments |
13 |
| Section 2. |
Entire Board of Directors |
13 |
AMENDED AND RESTATED BYLAWS
OF
SECUREWORKS CORP.
(hereinafter called the “Corporation”)
ARTICLE
I
OFFICES
Section 1.
Registered Office. The registered office of the Corporation shall be in the City of Wilmington, County of New Castle, State
of Delaware.
Section 2.
Other Offices. The Corporation may also have offices at such other places, both within and without the State of Delaware,
as the Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1.
Place of Meetings. Meetings of the stockholders for the election of directors or for any other purpose shall be held at
such time and place, either within or without the State of Delaware, as shall be designated from time to time by the Board of Directors.
The Board of Directors may, in its sole discretion, determine that a meeting of the stockholders shall not be held at any place, but may
instead be held solely by means of remote communication in the manner authorized by the General Corporation Law of the State of Delaware
(the “DGCL”).
Section 2.
Annual Meetings. The Annual Meeting of Stockholders for the election of directors shall be held on such date and at such
time as shall be designated from time to time by the Board of Directors. Any other proper business may be transacted at the Annual Meeting
of Stockholders.
Section 3.
Special Meetings. Unless otherwise required by law or by the certificate of incorporation of the Corporation, as amended
and restated from time to time (the “Certificate of Incorporation”), Special Meetings of Stockholders, for any purpose or
purposes, may be called by either (i) the Chairman, if there be one, or (ii) the President, (iii) any Vice President, if there be one,
(iv) the Secretary or (v) any Assistant Secretary, if there be one, and shall be called by any such officer at the request in writing
of the Board of Directors. At a Special Meeting of Stockholders, only such business shall be conducted as shall be specified in the notice
of meeting (or any supplement thereto).
Section 4.
Notice. Whenever stockholders are required or permitted to take any action at a meeting, a written notice of the meeting
shall be given which shall state the place, 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 meeting, and, in the case of a Special Meeting,
the purpose or purposes for which the meeting is called. Unless otherwise required by law, written notice of any meeting shall be given
not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to notice of and to
vote at such meeting.
Section 5.
Adjournments. Any meeting of the stockholders
may be adjourned from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting
if the time and place, if any, thereof and 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 meeting are announced at the meeting at which the adjournment is taken. At the adjourned
meeting, the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for
more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned
meeting in accordance with the requirements of Section 4 hereof shall be given to each stockholder of record entitled to notice of and
to vote at the meeting.
Section 6.
Quorum. Unless otherwise required by applicable law or the Certificate of Incorporation, the holders of a majority of the
Corporation's capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute
a quorum at all meetings of the stockholders for the transaction of business. A quorum, once established, shall not be broken by the withdrawal
of enough votes to leave less than a quorum. If, however, such quorum shall not be present or represented at any meeting of the stockholders,
the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time
to time, in the manner provided in Section 5 hereof, until a quorum shall be present or represented.
Section 7.
Voting. Unless otherwise required by law, the Certificate of Incorporation or these Bylaws, any question brought before
any meeting of the stockholders shall be decided by the vote of the holders of a majority of the total number of votes of the Corporation's
capital stock represented at the meeting and entitled to vote on such question, voting as a single class. Unless otherwise provided in
the Certificate of Incorporation, and subject to Section 11(a) of this Article II, each stockholder represented at a meeting of the stockholders
shall be entitled to cast one (1) vote for each share of the capital stock entitled to vote thereat held by such stockholder.
Section 8.
Proxies. Each stockholder entitled to vote at a meeting of the stockholders or to express consent or dissent to corporate
action in writing without a meeting may authorize another person or persons to act for such stockholder as proxy, but no such proxy shall
be voted upon after three years from its date, unless such proxy provides for a longer period. Any copy, facsimile telecommunication or
other reliable reproduction of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may
be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission
could be used; provided, however, that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of
the entire original writing or transmission.
Section 9.
Consent of Stockholders in Lieu of Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required
or permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation may be taken without a meeting, without prior
notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of the stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by
certified or registered mail,
return receipt requested. Every written consent
shall bear the date of signature of each stockholder who signs the consent and no written consent shall be effective to take the corporate
action referred to therein unless, within sixty (60) days of the earliest dated consent delivered in the manner required by this Section
9 to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of the stockholders are recorded. Prompt notice of the taking of the corporate action without
a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the
action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the
date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation as provided above
in this Section 9.
Section 10.
List of Stockholders Entitled to Vote. The officer of the Corporation who has charge of the stock ledger of the Corporation
shall prepare and make, at least ten (10) days before every meeting of the stockholders, a complete list of the stockholders entitled
to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open 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 (i) 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 (ii) during
ordinary business hours, at the principal place of business of the Corporation.
Section 11.
Record Date.
(a)
In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders
or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less
than ten (10) days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining
stockholders entitled to notice of or to vote at a meeting of the stockholders shall be 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 the stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
(b)
In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting,
the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which record date shall not be more than ten (10) days after the date upon which the resolution
fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date
for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of
Directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed
to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business,
or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of the stockholders are recorded.
Delivery made to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested.
If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the
record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking such prior action.
Section 12.
Stock Ledger. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to
examine the stock ledger, the list required by Section 10 of this Article II or the books of the Corporation, or to vote in person or
by proxy at any meeting of the stockholders.
Section 13.
Conduct of Meetings. The Board of Directors of the Corporation may adopt by resolution such rules and regulations for the
conduct of any meeting of the stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations
as adopted by the Board of Directors, the chairman of any meeting of the stockholders shall have the right and authority to prescribe
such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct
of the meeting.
Section 14.
Inspectors of Election. In advance of any meeting of the stockholders, the Board of Directors, by resolution, the Chairman
or the President shall appoint one or more inspectors to act at the meeting and make a written report thereof. If no inspector is able
to act at a meeting of the stockholders, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Unless
otherwise required by applicable law, inspectors may be officers, employees or agents of the Corporation. Each inspector, before entering
upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of such inspector's ability. The inspector shall have the duties prescribed by law and shall take charge of
the polls and, when the vote is completed, shall make a certificate of the result of the vote taken and of such other facts as may be
required by applicable law.
ARTICLE
III
DIRECTORS
Section 1.
Number and Election of Directors. The Board of Directors shall consist of not less than one nor more than ten members, the
exact number of which shall initially be fixed by the Incorporator and thereafter from time to time by the Board of Directors. Except
as provided in Section 2 of this Article III, directors shall be elected by a plurality of the votes cast at each Annual Meeting of Stockholders
and each director so elected shall hold office until the next Annual Meeting of Stockholders and until such director's successor is duly
elected and qualified, or until such director's earlier death, resignation or removal. Directors need not be stockholders.
Section 2.
Vacancies. Unless otherwise required by law or the Certificate of Incorporation, vacancies on the Board of Directors or
any committee thereof arising through death, resignation, removal, an increase in the number of directors constituting the Board of Directors
or such committee or otherwise may be filled only by a majority of the directors then in office, though less than a quorum, or by a sole
remaining director. The directors so chosen shall, in the case of the Board of Directors, hold office until the next annual election and
until their successors are duly elected and qualified, or until their earlier death, resignation or removal and, in the case of any committee
of
the Board of Directors, shall hold office until
their successors are duly appointed by the Board of Directors or until their earlier death, resignation or removal.
Section 3.
Duties and 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 required to be exercised or done by the stockholders.
Section 4.
Meetings. The Board of Directors and any committee thereof may hold meetings, both regular and special, either within or
without the State of Delaware. Regular meetings of the Board of Directors or any committee thereof may be held without notice at such
time and at such place as may from time to time be determined by the Board of Directors or such committee, respectively. Special meetings
of the Board of Directors may be called by the Chairman, if there be one, the President, or by any director. Special meetings of any committee
of the Board of Directors may be called by the chairman of such committee, if there be one, the President, or any director serving on
such committee. Notice thereof stating the place, date and hour of the meeting shall be given to each director (or, in the case of a committee,
to each member of such committee) either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone, telegram
or electronic means on twenty-four (24) hours' notice, or on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 5.
Organization. At each meeting of the Board of Directors or any committee thereof, the Chairman of the Board of Directors
or the chairman of such committee, as the case may be, or, in his or her absence or if there be none, a director chosen by a majority
of the directors present, shall act as chairman. Except as provided below, the Secretary of the Corporation shall act as secretary at
each meeting of the Board of Directors and of each committee thereof. In case the Secretary shall be absent from any meeting of the Board
of Directors or of any committee thereof, an Assistant Secretary shall perform the duties of secretary at such meeting. Notwithstanding
the foregoing, the members of each committee of the Board of Directors may appoint any person to act as secretary of any meeting of such
committee and the Secretary or any Assistant Secretary of the Corporation may, but need not if such committee so elects, serve in such
capacity.
Section 6.
Resignations and Removals of Directors. Any director of the Corporation may resign from the Board of Directors or any committee
thereof at any time, by giving notice in writing or by electronic transmission to the Chairman of the Board of Directors, if there be
one, the President or the Secretary of the Corporation and, in the case of a committee, to the chairman of such committee, if there be
one. Such resignation shall take effect at the time therein specified or, if no time is specified, immediately; and, unless otherwise
specified in such notice, the acceptance of such resignation shall not be necessary to make it effective. Except as otherwise required
by applicable law and subject to the rights, if any, of the holders of shares of preferred stock then outstanding, any director or the
entire Board of Directors may be removed from office at any time by the affirmative vote of the holders of at least a majority in voting
power of the issued and outstanding capital stock of the Corporation entitled to vote in the election of directors. Any director serving
on a committee of the Board of Directors may be removed from such committee at any time by the Board of Directors.
Section 7.
Quorum. Except as otherwise required by law, or the Certificate of Incorporation or the rules and regulations of any securities
exchange or quotation system on which the Corporation's securities are listed or quoted for trading, at all meetings of the Board of Directors
or any committee thereof, a majority of the
entire Board of Directors or a majority of the directors constituting such committee, as the case may be, shall constitute a quorum for
the transaction of business and the act of a majority of the directors or committee members present at any meeting at which there is a
quorum shall be the act of the Board of Directors or such committee, as applicable. If a quorum shall not be present at any meeting of
the Board of Directors or any committee thereof, the directors present thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting of the time and place of the adjourned meeting, until a quorum shall be present.
Section 8.
Actions of the Board by Written Consent. Unless otherwise provided in 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 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.
Section 9.
Meetings by Means of Conference Telephone. Unless otherwise provided in the Certificate of Incorporation or these Bylaws,
members of the Board of Directors of the Corporation, or any committee thereof, may participate in a meeting of the Board of Directors
or such committee by means of a 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 9 shall constitute presence in person at such
meeting.
Section 10.
Committees. The Board of Directors may designate one or more committees, each committee to consist of one or more of the
directors of the Corporation. Each member of a committee must meet the requirements for membership, if any, imposed by applicable law
and the rules and regulations of any securities exchange or quotation system on which the securities of the Corporation are listed or
quoted for trading. 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 any such committee. Subject to the rules and regulations of any securities exchange
or quotation system on which the securities of the Corporation are listed or quoted for trading, in the absence or disqualification of
a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or
disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member
or members constitute a quorum, may unanimously appoint another qualified member of the Board of Directors to act at the meeting in the
place of any absent or disqualified member. Any committee, to the extent permitted by law and provided in the resolution establishing
such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it. Each committee
shall keep regular minutes and report to the Board of Directors when required. Notwithstanding anything to the contrary contained in this
Article III, the resolution of the Board of Directors establishing any committee of the Board of Directors and/or the charter of any such
committee may establish requirements or procedures relating to the governance and/or operation of such committee that are different from,
or in addition to, those set forth in these Bylaws and, to the extent that there is any
inconsistency between these Bylaws and any
such resolution or charter, the terms of such resolution or charter shall be controlling.
Section 11.
Compensation. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors
and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary for service as director, payable
in cash or securities. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation
therefor.
Section 12.
Interested Directors. No contract or transaction between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the
contract or transaction, or solely because any such director's or officer's vote is counted for such purpose if: (i) the material facts
as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the Board
of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material
facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders;
or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board
of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a
quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE
IV
OFFICERS
Section 1.
General. The officers of the Corporation shall be chosen by the Board of Directors and shall be a President and a Secretary.
The Board of Directors, in its discretion, also may choose a Chairman of the Board of Directors (who must be a director), a Treasurer
and one or more Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by
the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these Bylaws. The officers of the Corporation
need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers be directors
of the Corporation.
Section 2.
Election. The Board of Directors, at its first meeting held after each Annual Meeting of Stockholders (or action by written
consent of stockholders in lieu of the Annual Meeting of Stockholders), shall elect the officers of the Corporation who shall hold their
offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of
Directors; and each officer of the Corporation shall hold office until such officer's successor is elected and qualified, or until such
officer's earlier death, resignation or removal. Any officer elected by the Board of Directors may be removed at any time by the Board
of Directors.
Any vacancy occurring in any office of the
Corporation shall be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of
Directors.
Section 3.
Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President or any other officer authorized to do so by the Board of Directors and any such officer may, in the name of and
on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting
of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise
any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have
exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person
or persons.
Section 4.
Chairman of the Board of Directors. The Chairman of the Board of Directors, if there be one, shall preside at all meetings
of the stockholders and of the Board of Directors. The Chairman of the Board of Directors shall also perform such other duties and may
exercise such other powers as may from time to time be assigned by these Bylaws or by the Board of Directors.
Section 5.
President. The President shall, subject to the control of the Board of Directors and, if there be one, the Chairman of the
Board of Directors, have general supervision of the business of the Corporation and shall see that all orders and resolutions of the Board
of Directors are carried into effect. The President shall also perform such other duties and may exercise such other powers as may from
time to time be assigned to such officer by these Bylaws or by the Board of Directors.
Section 6.
Vice Presidents. Each Vice President shall perform such other duties and have such other powers as the Board of Directors
or the President from time to time may prescribe.
Section 7.
Secretary. The Secretary shall attend all sessions of the Board of Directors and all meetings of the stockholders and record
all votes and the minutes of all proceedings, and shall perform like duties for committees when required. The Secretary shall give, or
cause to be given, notice of all meetings of the stockholders and meetings of the Board of Directors, and shall perform such other duties
as may be prescribed by the Board of Directors or the president. The Secretary shall keep in safe custody the seal of the Corporation
and have authority to affix the seal to all documents requiring it and attest to the same.
Section 8.
Treasurer. The Treasurer, if there is one, shall have the custody of the corporate funds and securities and shall keep
full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other
valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors
so requires, an account of all transactions as Treasurer and of the financial condition of the Corporation.
Section 9.
Assistant Secretaries. Assistant Secretaries,
if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors,
the President, any Vice President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of the Secretary's
inability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject
to all the restrictions upon the Secretary.
Section 10.
Assistant Treasurers. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Treasurer, and in
the absence of the Treasurer or in the event of the Treasurer's inability or refusal to act, shall perform the duties of the Treasurer,
and when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer.
Section 11.
Other Officers. Such other officers as the Board of Directors may choose shall perform such duties and have such powers
as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the
Corporation the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE
V
STOCK
Section 1.
Certificates. The shares of the Corporation shall be uncertificated, 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 certificated shares. Every holder of stock
represented by certificates shall be entitled to have a certificate signed by or in the name of the Corporation by duly authorized officers
of the Corporation certifying the number of shares owned by such holder in the Corporation.
Section 2.
Signatures. Any or all of the signatures on a 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 3.
Lost Certificates. The Board of Directors may direct a new certificate to be issued in place of any certificate 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, the Board of Directors
may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate,
or such owner's legal representative, to advertise the same in such manner as the Board of Directors shall require and/or 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 on account of
the alleged loss, theft or destruction of such certificate or the issuance of such new certificate.
Section 4.
Transfers. Stock of the Corporation
shall be transferable in the manner prescribed by applicable law and in these Bylaws. Transfers of stock shall be made on the books of
the Corporation only by the person named in the stock records of the Corporation or by such person's attorney lawfully constituted in
writing and upon the surrender of the certificate therefor (if any), properly endorsed for transfer or accompanied by proper evidence
of succession, assignment or authority to transfer and payment of all necessary transfer taxes; provided, however, that such surrender
and endorsement or payment of taxes shall not be required in any case in which the officers of the Corporation shall determine to waive
such requirement. Every certificate exchanged, returned or surrendered to the Corporation shall be marked “Cancelled,” with
the date of cancellation, by the Secretary or Assistant Secretary of the Corporation or the transfer agent thereof. No transfer of stock
shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation by
an entry showing from and to whom transferred.
Section 5.
Dividend Record Date. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend
or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion
or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall
not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60)
days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the
close of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 6.
Record Owners. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as
the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered
on its books as the owner of shares, and 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 required by
law.
Section 7.
Transfer and Registry Agents. The Corporation may from time to time maintain one or more transfer offices or agencies and
registry offices or agencies at such place or places as may be determined from time to time by the Board of Directors.
ARTICLE
VI
NOTICES
Section 1.
Notices. Whenever written notice is required by law, the Certificate of Incorporation or these Bylaws, to be given to any
director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or
stockholder, at such person's address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall
be deemed to be given at the time when the same shall be deposited in the United States mail. Without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under applicable law, the Certificate
of Incorporation or these Bylaws shall be effective if given by a form of electronic transmission if consented to by the stockholder to
whom the notice is given. Notice given by electronic transmission, as described above, shall be deemed given: (i) if by facsimile telecommunication,
when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic
mail address at which the stockholder
has consented to receive notice; (iii) if by
a posting on an electronic network, together with separate notice to the stockholder of such specific posting, upon the later of (A) such
posting and (B) the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder.
Notice to directors or committee members may be given personally or by telegram, telex, cable or by means of electronic transmission.
Section 2.
Waivers of Notice. Whenever any notice is required by applicable law, the Certificate of Incorporation or these Bylaws,
to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled
to notice, or a waiver by electronic transmission by the person or persons entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. Attendance of a person at a meeting, present in person or represented by proxy, shall constitute
a waiver of notice of such meeting, except where the person attends the meeting for the express purpose of objecting at the beginning
of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted
at, nor the purpose of, any Annual or Special Meeting of Stockholders or any regular or special meeting of the directors or members of
a committee of directors need be specified in any written waiver of notice unless so required by law, the Certificate of Incorporation
or these Bylaws.
ARTICLE
VII
GENERAL PROVISIONS
Section 1.
Dividends. Dividends upon the capital stock of the Corporation, subject to the requirements of the DGCL and the provisions
of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting of the Board
of Directors (or any action by written consent in lieu thereof in accordance with Section 8 of Article III hereof), and may be paid in
cash, in property, or in shares of the Corporation's capital stock.
Section 2.
Disbursements. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers
or such other person or persons as the Board of Directors may from time to time designate.
Section 3.
Fiscal Year. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
Section 4.
Corporate Seal. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization
and the words “Corporate Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed
or reproduced or otherwise.
ARTICLE
VIII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1.
Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by law as it
presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made
a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a “proceeding”),
by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, limited liability company, joint venture, trust, enterprise or nonprofit
or other entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including
attorneys’ fees) reasonably incurred by such Covered Person. Notwithstanding the preceding sentence, except as otherwise provided
in Section 3 of this Article VIII, the Corporation shall be required to indemnify a Covered Person in connection with a proceeding (or
part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was
authorized by the Board of Directors.
Section 2.
Right to Advancement of Expenses. The Corporation shall, to the fullest extent permitted by law, pay the expenses (including
attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition, provided, however,
that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only
upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered
Person is not entitled to be indemnified under this Article VIII or otherwise. The rights to indemnification and to the advancement of
expenses conferred in Sections 1 and 2 of this Article VIII shall be contract rights which shall continue as to a Covered Person who has
ceased to be a director, officer, employee or agent and shall inure to the benefit of such Covered Person’s heirs, executors and
administrators.
Section 3.
Claims. If a claim for indemnification under this Article XI (following the final disposition of any applicable proceeding)
is not paid in full within 60 days after the Corporation has received a claim therefor by the Covered Person, or if a claim for any advancement
of expenses under this Article VIII is not paid in full within 30 days after the Corporation has received a statement or statements requesting
such amounts to be advanced, the Covered Person shall thereupon (but not before) be entitled to file suit to recover the unpaid amount
of such claim. If successful in whole or in part, the Covered Person shall be entitled to be paid the expense of prosecuting such claim
to the fullest extent permitted by law. In any such action, the Corporation shall have the burden of proving that the Covered Person is
not entitled to the requested indemnification or advancement of expenses under law.
Section 4.
Non-exclusivity of Rights. The rights conferred on any Covered Person by this Article VIII shall not be exclusive of any
other rights which such Covered Person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation,
agreement, vote of stockholders or of disinterested directors, these Bylaws or otherwise.
Section 5.
Other Sources. The Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who
was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, limited liability company,
joint venture, trust, enterprise or nonprofit or other entity shall be reduced by any amount such Covered Person may collect as indemnification
or advancement of expenses from such other corporation, partnership, limited liability company, joint venture, trust, enterprise or nonprofit
or other entity.
Section 6.
Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VIII shall not adversely affect
any right or protection hereunder of any
Covered Person in respect of any act or omission occurring
prior to the time of such repeal or modification.
Section 7.
Insurance. The Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee
or agent of another corporation or of a partnership, limited liability company, joint venture, trust, enterprise or nonprofit or other
entity, against any liability asserted against such person or incurred by such person in any such capacity, or arising out of such person’s
status as such, and related expenses, whether or not the Corporation would have the power to indemnify such person against such liability
under the provisions of law.
Section 8.
Other Indemnification and Prepayment of Expenses. This Article VIII shall not limit the right of the Corporation, to the
extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized
by appropriate corporate action.
ARTICLE
IX
AMENDMENTS
Section 1. Amendments.
These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by the Board
of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice
of such meeting of the stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders
of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
Section 2. Entire Board
of Directors. As used in this Article IX and in these Bylaws generally, the term “entire Board of Directors” means the
total number of directors which the Corporation would have if there were no vacancies.
* * *
EXHIBIT
99.1
Sophos
Completes Secureworks Acquisition
Sophos
is Now the Leading Pure-Play Cybersecurity Provider of MDR Services
OXFORD,
U.K. and ATLANTA – February 3, 2025 – Sophos and Secureworks® (NASDAQ:SCWX), two global cybersecurity pioneers that have
innovated and redefined services and technology solutions for defeating cyberattacks, today announced the completion of Sophos’
acquisition of Secureworks. The all-cash transaction values Secureworks at approximately $859 million. With the completion of the acquisition,
Secureworks’ common stock has ceased trading on Nasdaq. Sophos is backed by Thoma Bravo, a leading software investment firm.
With
this acquisition, Sophos is now the leading pure-play cybersecurity provider of Managed Detection and Response (MDR) services, supporting
more than 28,000 organizations of all sizes worldwide. The combination will enable Sophos to deliver an unparalleled security operations
platform, featuring hundreds of built-in integrations for adaptive protection, detection and response for mitigating cyberattacks. The
open and scalable platform helps organizations, especially those with diverse IT estates, safeguard current and future technology investments,
providing greater operational efficiencies and return on cybersecurity spend. Sophos X-Ops is also
expanding its threat intelligence and security services capabilities with the addition of the Secureworks Counter
Threat Unit™ and security operations and advisory teams.
As
a channel-first cybersecurity provider, Sophos remains unwavering in its commitment to deliver cutting-edge security services and technologies
that empower our global community of resellers, Managed Service Providers (MSPs) and Managed Security Services Providers (MSSPs). This
includes expanding their reach, enhancing operational scalability and providing stronger defenses to the countless organizations that
need the ability to effectively defend against today’s constant and complex cyberattacks.
“The
market is embracing MDR as a clear means to deliver positive cybersecurity outcomes, and this has meant
rapid growth in the category,” said Joe Levy, CEO, Sophos. “Sophos is differentiated by our very mature competencies in ransomware
detection, malware analysis and threat actor tradecraft. These defenses are further augmented by Sophos’ native artificial intelligence
(AI), first innovated by our globally peer recognized AI team nearly a decade ago, and embedded in our MDR, endpoint, network, email,
and cloud security to more effectively neutralize and stop threats. With the integration of Secureworks, our expanded services
and product portfolio will provide even stronger end-to-end security solutions that will include identity threat detection and response
(ITDR), next-gen SIEM and managed risk, all in a single open platform.
“We
will also be able to further advance our AI, threat intelligence and attack research through more diverse and deeper global telemetry
that is analyst-tuned for the real-world. At every level, we are very excited about this next accelerated chapter for Sophos.”
Available
Now
In
the near term, Sophos and Secureworks are operating business as usual, working with our respective channel partners, MSPs and MSSPs worldwide
to distribute our existing security services and
technology.
Both companies’ sales and customer experience groups will operate to support existing customers, assist with renewals and develop
current and new business opportunities. Sophos protects more than 600,000 customers worldwide with its portfolio of MDR, endpoint, network,
email, and cloud security solutions that integrate and adapt to provide real-time defense through the Sophos Central platform.
Transaction
Details
Under
the terms of the agreement, Sophos acquired Secureworks in an all-cash transaction valued at approximately $859 million. Secureworks
shareholders, including Dell Technologies (NYSE:DELL), will receive $8.50 per share in cash. This represents a 28% premium to the unaffected
90-day volume-weighted average price (VWAP).
Kirkland
& Ellis LLP acted as legal counsel to Sophos, Goldman Sachs & Co. LLC., Barclays, BofA Securities, HSBC Securities (USA) Inc.,
and UBS Investment Bank acted as financial advisors and provided debt financing for the transaction. Piper Sandler & Company and
Morgan Stanley & Co. LLC acted as financial advisors to Secureworks, and Paul, Weiss, Rifkind, Wharton & Garrison LLP acted as
legal counsel.
#
# #
About
Sophos
Sophos
is a global leader and innovator of advanced security solutions for defeating cyberattacks. The company acquired Secureworks in February
2025, bringing together two pioneers that have redefined the cybersecurity industry with their
innovative, native AI-optimized services, technologies and products. Sophos is now the largest pure-play Managed Detection and Response
(MDR) provider, supporting more than 28,000 organizations. In addition to MDR and other services, Sophos’ complete portfolio includes
industry-leading endpoint, network, email, and cloud security that interoperate and adapt to defend through the Sophos Central platform.
Secureworks provides the innovative, market-leading Taegis XDR/MDR, identity threat detection and response (ITDR), next-gen SIEM capabilities,
managed risk, and a comprehensive set of advisory services. Sophos sells all these solutions
through reseller partners, Managed Service Providers (MSPs) and Managed Security Service Providers (MSSPs) worldwide, defending more
than 600,000 organizations worldwide from phishing, ransomware, data theft, other every day and state-sponsored cybercrimes. The solutions
are powered by historical and real-time threat intelligence from Sophos X-Ops and the newly added Counter Threat Unit (CTU). Sophos is
headquartered in Oxford, U.K. More information is available at www.sophos.com.
Cautionary
Statement Regarding Forward-Looking Statements
This
communication includes certain disclosures which contain “forward-looking statements” within the meaning of the Private Securities
Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act
of 1934, as amended, including but not limited to certain statements related to the merger of the wholly-owned subsidiary of Sophos,
Inc., a Massachusetts corporation (“Parent”) with and into SecureWorks Corp. (the “Company”), with the Company
continuing as the surviving corporation and a wholly-owned subsidiary of Parent (the “Merger”). In most cases, you can identify
these statements by forward-looking words such as “anticipate,” “believe,” “confidence,” “could,”
“estimate,” “expect,” “guidance,” “intend,” “may,” “plan,” “potential,”
“outlook,” “should,” and “would,” or similar words or expressions that refer to
future
events or outcomes. These forward-looking statements, including certain statements regarding the Merger and its effects, are based largely
on information currently available to our management and our management’s current expectations and assumptions and are subject
to various risks and uncertainties that could cause actual results to differ materially from historical results or those expressed or
implied by such forward-looking statements. Although we believe our expectations are based on reasonable estimates and assumptions, they
are not guarantees of performance. There is no assurance that our expectations will occur or that our estimates or assumptions will be
correct, and we caution investors and all others not to place undue reliance on such forward-looking statements. Important factors, risks
and uncertainties that could cause actual results to differ materially from such plans, estimates or expectations include but are not
limited to: (i) potential adverse reactions or changes to business relationships resulting from the completion of the Merger; (ii) legislative,
regulatory and economic developments; (iii) unpredictability and severity of catastrophic events, including but not limited to acts of
terrorism, outbreaks of war or hostilities or the COVID-19 pandemic and other public health issues, as well as management’s response
to any of the aforementioned factors; (iv) the impact of inflation, rising interest rates, and global conflicts, including disruptions
in European economies as a result of the Ukrainian/Russian conflict and the ongoing conflicts in the Middle East, the relationship between
China and Taiwan and ongoing trade disputes between the United States and China; (v) there may be liabilities that are not known, probable
or estimable at this time or unexpected costs, charges or expenses; (vi) those risks and uncertainties set forth under the headings “Cautionary
Note Regarding Forward Looking Statements” and “Risk Factors” in the Company’s most recent Annual Report on Form
10-K, as such risk factors may be amended, supplemented or superseded from time to time by other reports filed by the Company with the
Securities and Exchange Commission (the “SEC”) from time to time, which are available via the SEC’s website at www.sec.gov.
These factors should not be construed as exhaustive and should be read in conjunction with the other forward-looking statements. The
forward-looking statements relate only to events as of the date on which the statements are made. Neither Parent nor the Company undertakes
to update, and expressly disclaim any obligation to update, any forward-looking statements, whether resulting from circumstances or events
that arise after the date the statements are made, new information, or otherwise. If one or more of these or other risks or uncertainties
materialize, or if the underlying assumptions prove to be incorrect, actual results may vary materially from what we may have expressed
or implied by these forward-looking statements. Furthermore, new risks and uncertainties arise from time to time, and it is impossible
for us to predict those events or how they may affect Parent or the Company.
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