o
 
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) June 21, 2017
 
TRC COMPANIES, INC.
(Exact name of registrant as specified in its charter)

Delaware	 	001-09947	 	No. 06-0853807	
(State or other jurisdiction of
incorporation or organization)	 	(Commission File Number)	 	(I.R.S. Employer Identification No.)	

21 Griffin Road North	 	
Windsor, Connecticut 60095	 	
(Address of principal executive offices) (Zip Code)	 	
 
(860) 298-9692
(Registrant’s telephone number, including area code)
 
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:
 
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR240.14d-2(b))
 
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 under the Securities Act (17 CFR 230.405) or Rule 12b-2 under the Exchange Act (17 CFR 240.12b-2).
 
Emerging growth company o
 
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. o

 

 
Introductory Note
 
On June 21, 2017 (the “ Closing Date ”), pursuant to the terms of the Agreement and Plan of Merger (the “ Merger Agreement ”), dated as of March 30, 2017, by and among TRC Companies, Inc., a Delaware corporation (the “ Company ”), Bolt Infrastructure Parent, Inc., a Delaware corporation (“ Parent ”), and Bolt Infrastructure Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“ Merger Sub ”), Parent completed its acquisition of the Company through the merger of Merger Sub with and into the Company (the “ Merger ”), with the Company surviving the Merger as a wholly owned subsidiary of Parent. Parent and Merger Sub were formed by affiliates of New Mountain Partners IV, L.P., a Delaware limited partnership (“ New Mountain Capital ”).
 
Item 1.01               Entry into a Material Definitive Agreement.
 
New Senior Secured Credit Facilities
 
On the Closing Date, in connection with and substantially concurrent with the closing of the Merger, the Company entered into a credit agreement (the “ Credit Agreement ”) governing its senior secured credit facilities (the “ New Senior Secured Credit Facilities ”) with UBS AG, Stamford Branch as administrative agent, collateral agent, and L/C issuer, Parent, certain subsidiaries of the Company acting as guarantors (together with Parent, the “ Guarantors ”) and the lenders from time to time party thereto.
 
The New Senior Secured Credit Facilities provide for a seven-year senior secured term loan facility in an aggregate principal amount of $325 million (the “ New Term Loan Facility ”) and a five-year senior secured revolving credit facility in an aggregate principal amount of $60 million (the “ New Revolving Facility ”). The proceeds of the New Term Loan Facility were used to fund a portion of the Merger Consideration (as defined below) and to pay fees and expenses incurred in connection therewith.  The term loans under the New Term Loan Facility amortize in equal quarterly installments in an aggregate annual amount equal to 1.00% of the original principal amount of such term loans, with the balance due and payable at maturity unless earlier prepaid.
 
The New Revolving Facility includes a sub-facility for letters of credit. In addition, the Credit Agreement permits the Company to request incremental term loans or incremental revolving credit commitments in an aggregate principal amount of up to (a) the greater of (1) $68 million and (2) an amount equal to the Company’s trailing twelve-month consolidated EBITDA (as defined in the Credit Agreement) at the time of determination plus (b) an amount equal to all voluntary prepayments of the term loans under the Credit Agreement and certain other incremental equivalent debt and permanent revolving credit commitment reductions under the Credit Agreement, in each case prior to or simultaneous with the date of any such incurrence (to the extent not funded with the proceeds of long-term debt) plus (c) an unlimited additional amount so long as the Company and its restricted subsidiaries under the Credit Agreement (I) in the case of incremental indebtedness that is secured by the collateral on a pari passu basis with the New Senior Secured Credit Facilities, do not exceed a specified pro forma first lien net leverage ratio, (II) in the case of incremental indebtedness that is secured by the collateral on a junior basis with respect to the New Senior Secured Credit Facilities, do not exceed a specified pro forma secured net leverage ratio, and (III) in the case of unsecured incremental indebtedness, do not exceed a specified total net leverage ratio. The lenders under the New Senior Secured Credit Facilities are not under any obligation to provide any such incremental loans or commitments, and any such incremental loans or commitments are subject to certain customary conditions precedent and other provisions.
 
Interest Rate and Fees
 
Borrowings under the New Senior Secured Credit Facilities will bear interest, at the Company’s option, at a rate per annum equal to an applicable margin over either (a) a base rate determined by reference to the highest of (1) the administrative agent’s prime lending rate, (2) the federal funds effective rate plus 1/2 of 1% and (3) the LIBOR rate for a one-month interest period plus 1.00% or (b) a LIBOR rate determined by reference to the LIBOR rate as set forth by the ICE Benchmark Administration for the interest period relevant to such borrowing, in each case, subject to interest rate floors.
 
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Prepayments
 
The New Senior Secured Credit Facilities require mandatory prepayments under certain circumstances, including with respect to excess cash flow, asset sale proceeds and proceeds from certain incurrences of indebtedness. The Company may voluntarily repay outstanding loans under the New Senior Secured Credit Facilities at any time without premium or penalty, other than customary breakage costs with respect to LIBOR loans; provided, however, that any voluntary prepayment, refinancing or repricing of the term loans under the New Term Loan Facility in connection with certain repricing transactions that occur prior to the date that is six months after the closing of the New Senior Secured Credit Facilities are subject to a prepayment premium of 1.00% of the principal amount of the term loans so prepaid, refinanced or repriced.
 
Guarantee and Security
 
All of the Company’s obligations under the New Senior Secured Credit Facilities and certain hedge agreements and cash management arrangements provided by any lender party to the New Senior Secured Credit Facilities or any of its affiliates and certain other persons will be unconditionally guaranteed by Parent, the Company (with respect to hedge agreements and cash management arrangements not entered into by the Company) and each of the Guarantors, with customary exceptions including, among other things, where providing such guarantees is not permitted by law, regulation or contract or would result in material adverse tax consequences.
 
All obligations under the New Senior Secured Credit Facilities and certain hedge agreements and cash management arrangements provided by any lender party to the New Senior Secured Credit Facilities or any of its affiliates and certain other persons, and the guarantees of such obligations, will be secured, subject to permitted liens and other exceptions, by (a) a perfected first-priority pledge of all the equity interests of the Company, each Guarantor and certain material subsidiaries of the Company and the Guarantors (limited to 65% of voting stock in the case of first-tier material foreign subsidiaries) and (b) perfected first-priority (1) security interests in substantially all tangible and intangible personal property of the Company and the Guarantors and (2) mortgages on material fee-owned real property of the Company and the Guarantors in excess of a specified value (subject to certain other exclusions).
 
Covenants and Events of Default
 
The New Senior Secured Credit Facilities contain a number of negative covenants that, among other things, restrict, subject to certain exceptions, the ability of the Company and the Guarantors to:

·	 	incur additional indebtedness and guarantee indebtedness;	

·	 	create or incur liens;	

·	 	engage in mergers or consolidations;	 	

·	 	sell, transfer or otherwise dispose of assets;	

·	 	pay dividends and distributions or repurchase capital stock;	

·	 	prepay, redeem or repurchase certain indebtedness;	

·	 	make investments, loans and advances;	 	

·	 	enter into agreements which limit the ability of the Company and the Guarantors to incur liens on assets; and	

·	 	enter into amendments to certain subordinated indebtedness in a manner materially adverse to the lenders.	
 
The New Revolving Facility contains a springing financial covenant requiring compliance with a maximum ratio of first lien net indebtedness to consolidated EBITDA of 7.10:1.00. The financial covenant will be tested on the last day of each fiscal quarter (commencing with the fiscal quarter ending on September 30, 2017) only if the aggregate principal amount of borrowings under the New Revolving Facility and letters of credit (other than undrawn letters of credit), exceeds 35% of the total commitments under the New Revolving Facility on such day.
 
The New Senior Secured Credit Facilities also limit Parent’s activities to being a passive holding company and contain certain customary affirmative covenants and events of default for facilities of this type, including
 
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relating to a change of control. If an event of default occurs, the lenders under the New Senior Secured Credit Facilities will be entitled to take various actions and remedies, including the acceleration of amounts due under the New Senior Secured Credit Facilities and certain other customary actions and remedies permitted to be taken by secured creditors.
 
Item 1.02 Termination of a Material Definitive Agreement.
 
On the Closing Date, in connection with and substantially concurrent with the closing of the Merger, the Company and its subsidiaries terminated the Credit Agreement, dated as of January 31, 2017, by and among the Company, Citizens Bank, N.A., as administrative agent, an LC issuer, swingline lender, and sole lead arranger and sole bookrunner, BMO Harris Bank N.A., as an LC issuer and syndication agent, KeyBank, National Association, as documentation agent, and the lenders from time to time party thereto, and all obligations thereunder, other than certain contingent indemnity obligations, were repaid, satisfied and discharged in full.
 
Item 2.01 Completion of Acquisition or Disposition of Assets.
 
The Merger became effective at 1:01 p.m. (Eastern time) on the Closing Date, and at such time (the “ Effective Time ”), each share of common stock, par value $0.10 per share, of the Company (the “ Common Stock ”) issued and outstanding immediately prior to the Effective Time (other than shares (i) owned by the Company, Parent or Merger Sub or (ii) held by a stockholder who is entitled to, but did not vote in favor of the Merger (or consent thereto in writing) and is entitled to demand and has properly demanded appraisal of such shares) was cancelled and converted into the right to receive cash in an amount per share (subject to any applicable withholding tax) equal to $17.55 per share, without interest (the “ Merger Consideration ”).
 
In addition, as of the Effective Time, all outstanding stock options, restricted stock units and performance stock units of the Company (collectively, “ Company Equity Awards ”) were cancelled and converted into the right to receive a specified amount of cash (subject to any applicable withholding tax), without interest, based on the Merger Consideration, except as otherwise agreed between Parent and certain holders of Company Equity Awards.
 
The aggregate Merger Consideration paid was approximately $578 million, which, along with fees and expenses related to the Merger, was funded through a combination of (a) common equity contributions by investment funds affiliated with New Mountain Capital, (b) debt financing provided through the New Term Loan Facility and (c) cash on hand from the Company and/or its subsidiaries. In addition, certain employees of the Company elected to forego receipt of approximately $17 million of Merger Consideration in exchange for equity in an affiliate of Parent.
 
The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which was filed as Exhibit 2.1 to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission (the “ SEC ”) on March 31, 2017, and is incorporated by reference into this Item 2.01.
 
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
 
The information set forth under Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 2.03.
 
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
 
The information set forth under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.
 
In connection with the closing of the Merger, the Company notified the New York Stock Exchange (the “ NYSE ”) on the Closing Date that the certificate of merger had been filed with the Secretary of State of the State of Delaware and that, at the Effective Time, each issued and outstanding share of Common Stock (except as described in Item 2.01) was cancelled and converted into the right to receive the Merger Consideration. In addition, the Company requested that the NYSE file a Form 25 with the SEC to delist and deregister the Common Stock under
 
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Section 12(b) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), on the Closing Date.  As a result, trading of the Common Stock, which trades under the ticker symbol “TRR” on the NYSE, will be suspended prior to the opening of the NYSE on June 22, 2017.
 
The Company intends to file a Form 15 with the SEC requesting the termination of registration of the 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.
 
Item 3.03 Material Modification to Rights of Security Holders.
 
The information set forth under Items 2.01 and 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
 
At the Effective Time, each holder of shares of Common Stock issued and outstanding immediately prior to the Effective Time ceased to have any rights as a stockholder of the Company (other than the right (except as described in Item 2.01) to receive the Merger Consideration).
 
Item 5.01 Changes in Control of Registrant.
 
The information set forth under Items 2.01 and 5.02 of this Current Report on Form 8-K is incorporated by reference into 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.
 
The information set forth under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.02.
 
Directors
 
As of the Effective Time, in accordance with the Merger Agreement, each of Christopher P. Vincze, F. Thomas Casey, Richard H. Grogan, Stephanie C. Hildebrandt, John A. Carrig, Stephen M. Duff, Kathleen M. Shanahan, Keith B. Trent and Dennis E. Welch voluntarily resigned from the Company’s board of directors and all committees thereof. Immediately following the Effective Time, Christopher P. Vincze, Martin H. Dodd and Jason Greenlaw, the Company’s controller, were appointed as directors of the Company.
 
Officers
 
As of the Effective Time, the officers of the Company immediately prior to the Merger remained officers of the Company.
 
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
 
The information set forth under Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.
 
In accordance with the Merger Agreement, at the Effective Time, the certificate of incorporation of the Company, as in effect immediately prior to the Effective Time, was amended and restated in its entirety and the bylaws of the Company, as in effect immediately prior to the Effective Time, were amended and restated in their entirety. A copy of the amended and restated certificate of incorporation is attached as Exhibit 3.1 hereto and is incorporated herein by reference, and a copy of the amended and restated bylaws is attached as Exhibit 3.2 hereto and is incorporated herein by reference.
 
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Item 7.01 Regulation FD Disclosure.
 
On the Closing Date, the Company issued a press release announcing the completion of the Merger. A copy of the press release is furnished as Exhibit 99.1 hereto and incorporated by reference in this Item 7.01. Such press release shall not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing made by the Company under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
 
Item 9.01 Financial Statements and Exhibits.
 
(d) Exhibits

Exhibit No.	 	Description	
 	 	 	
2.1	 	Agreement and Plan of Merger, dated as of March 30, 2017, by and among TRC Companies, Inc., Bolt Infrastructure Parent, Inc. and Bolt Infrastructure Merger Sub, Inc. (incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by the Company on March 31, 2017).	
 	 	 	
3.1	 	Amended and Restated Certificate of Incorporation of TRC Companies, Inc.	
 	 	 	
3.2	 	Amended and Restated Bylaws of TRC Companies, Inc.	
 	 	 	
99.1	 	Press release of TRC Companies, Inc., dated June 21, 2017.	
 
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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.

 	TRC COMPANIES, INC.	

Date: June  21, 2017	By:	/s/ Thomas W. Bennet, Jr.	
 	 	Thomas W. Bennet, Jr.	
 	 	Senior Vice President and Chief Financial Officer	
 
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Exhibit Index

Exhibit No.	 	Description	
 	 	 	
2.1	 	Agreement and Plan of Merger, dated as of March 30, 2017, by and among TRC Companies, Inc., Bolt Infrastructure Parent, Inc. and Bolt Infrastructure Merger Sub, Inc. (incorporated herein by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by the Company on March 31, 2017).	
 	 	 	
3.1	 	Amended and Restated Certificate of Incorporation of TRC Companies, Inc.	
 	 	 	
3.2	 	Amended and Restated Bylaws of TRC Companies, Inc.	
 	 	 	
99.1	 	Press release of TRC Companies, Inc., dated June 21, 2017.	
 
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Exhibit 3.1
 
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
 
OF
 
TRC COMPANIES, INC.
 
ARTICLE ONE
 
The name of the corporation is TRC Companies, Inc. (hereinafter called the “ Corporation ”).
 
ARTICLE TWO
 
The address of the Corporation’s registered office is located at 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 THREE
 
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “ DGCL ”).
 
ARTICLE FOUR
 
The total number of shares which the Corporation shall have the authority to issue is one thousand (1,000) shares, all of which shall be shares of Common Stock, with a par value of one cent ($0.01) per share.
 
ARTICLE FIVE
 
The holder of each share of common stock shall be entitled to a number of votes equal to the dollar amount per share contributed by such holder for such share, rounded to the nearest dollar amount.
 
ARTICLE SIX
 
The board of directors of the Corporation (the “ Board of Directors ”) shall have the power to adopt, amend or repeal by-laws of the Corporation (the “ By-laws ”), except as may otherwise be provided in the By-laws.
 
ARTICLE SEVEN
 
The Corporation expressly elects not to be governed by Section 203 of the DGCL.

 
ARTICLE EIGHT
 
Whenever a compromise or arrangement is proposed between the Corporation and its creditors or any class of them and/or between the Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of the Corporation or any creditor or stockholder thereof or on the application of any receiver or receivers appointed for the Corporation under the provisions of Section 291 of the DGCL or on the application of trustees in dissolution or of any receiver or receivers appointed for the Corporation under the provisions of Section 279 of the DGCL, order a meeting of the creditors or class of creditors, and/or the stockholders or class of stockholders of the Corporation, as the case may be, to be summoned in such manner as the said court directs.  If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of the Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of the Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders, or class of stockholders, of the Corporation, as the case may be, and also on this Corporation.
 
ARTICLE NINE
 
Each director of the Corporation shall be personally liable to the Corporation or any of its shareholders, if at all, for monetary damages for breach of a fiduciary duty as a director only for: (a) any breach of the director’s duty of loyalty to the Corporation or its shareholders; (b) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (c) acts covered under Section 174 of the Delaware General Corporation Law, or (d) for any transaction from which the director derives improper personal benefit.
 
ARTICLE TEN
 
To the fullest extent permitted by law, the doctrine of corporate opportunity and any analogous doctrine shall not apply to any shareholder, director, officer or any other person or entity in each case who is not a full-time employee of the Corporation or any of its subsidiaries (including, with respect to any of the foregoing that are entities, any affiliates, directors, officers, partners, members and associated entities of such entities and their affiliates).  The Corporation renounces any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to any shareholder, director or officer or any other person or entity in each case who is not a full-time employee of the Corporation or any of its subsidiaries (including, with respect to any of the foregoing that are entities, any affiliates, directors, officers, partners, members and associated entities of such entities and their affiliates).  Each shareholder, director, officer or any other person or entity in each case who is not a full-time employee of the Corporation or any of its subsidiaries (including, with respect to any of the foregoing that are entities, any affiliates, directors, officers, partners, members and associated entities of such entities and their affiliates) who acquires knowledge of a potential circumstance, transaction, agreement, arrangement or other matter that may be an opportunity for the Corporation shall not (a) have any duty to communicate or offer such opportunity to the Corporation and (b) shall not be liable to the Corporation, its subsidiaries

 
or to the shareholders of the Corporation because such shareholder, director, officer or other person or entity in each case who is not a full-time employee of the Corporation or its subsidiaries (including, with respect to any of the foregoing that are entities, any affiliates, directors, officers, partners, members and associated entities of such entities and their affiliates) pursues or acquires for, or directs such opportunity to, itself or another person or entity or does not communicate such opportunity or information to the Corporation.
 
ARTICLE ELEVEN
 
The Corporation reserves the right to amend or repeal any provisions contained in this Amended and Restated Certificate of Incorporation from time to time and at any time in the manner now or hereafter prescribed by the laws of the State of Delaware, and all rights conferred upon stockholders and directors are granted subject to such reservation.
 
*              *              *              *

Exhibit 3.2
 
AMENDED AND RESTATED BY-LAWS
 
OF
 
TRC COMPANIES, INC.
 
A Delaware Corporation
 
(Adopted as of June 21, 2017)
 
ARTICLE I
 
OFFICES
 
Section 1.  Registered Office .  The registered office of TRC Companies, Inc., a Delaware corporation (the “ Corporation ”), in the State of Delaware shall be located at 2711 Centerville Road, Suite 400, Wilmington, New Castle County, Delaware 19808.  The name of its registered agent at such address is Corporation Service Company.  The registered office and/or registered agent of the Corporation may be changed from time to time by action of the board of directors.
 
Section 2.  Other Offices .  The Corporation may also have offices at such other places, both within and outside of the State of Delaware, as the board of directors may from time to time determine or the business of the Corporation may require.
 
ARTICLE II
 
MEETINGS OF STOCKHOLDERS
 
Section 1.  Place and Time of Meetings .  An annual meeting of the stockholders may be held each year for the purpose of electing directors and conducting such other proper business as may come before the meeting.  The date, time and place, if any, and/or the means of remote communication, of the annual meeting may be determined by resolution of the board of directors or as set by the president of the Corporation.  No annual meeting of stockholders need be held if not required by the Corporation’s certificate of incorporation or by the General Corporation Law of the State of Delaware (as amended from time to time (the “ DGCL ”)).
 
Section 2.  Special Meetings .  Special meetings of stockholders may be called for any purpose (including, without limitation, the filling of board vacancies and newly created directorships), and may be held at such time and place, within or outside of the State of Delaware, and/or by means of remote communication, as shall be stated in a notice of meeting or in a duly executed waiver of notice thereof.  Such meetings may be called at any time by two or more members of the board of directors, the president or the holders of shares entitled to cast not less than a majority of the votes at the meeting or the holders of fifty percent (50%) of the outstanding shares of any series or class of the Corporation’s capital stock.

 
Section 3.  Place of Meetings .  The board of directors may designate any place, either within or outside of the State of Delaware, and/or by means of remote communication, as the place of meeting for any annual meeting or for any special meeting called by the board of directors.  If no designation is made, or if a special meeting is otherwise called, the place of meeting shall be the principal executive office of the Corporation.
 
Section 4.  Notice .  Whenever stockholders are required or permitted to take any action at a meeting, written or printed notice stating the place, if any, date and hour of the meeting, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of special meetings, the purpose(s) of such meeting, shall be given to each stockholder entitled to vote at such meeting not less than 10 nor more than 60 days before the date of the meeting.  All such notices shall be delivered, either personally, by mail, or by a form of electronic transmission consented to by the stockholder to whom the notice is given, by or at the direction of the board of directors, the president or the secretary, and if mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his, her or its address as the same appears on the records of the Corporation.  If given by electronic transmission, such notice shall be deemed to be delivered (a) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (b) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (c) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of (1) such posting, and (2) the giving of such separate notice, and (3) if by any other form of electronic transmission, when directed to the stockholder.  Any such consent shall be revocable by the stockholder by written notice to the Corporation.  Any such consent shall be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the secretary or an assistant secretary of the Corporation or to the transfer agent.  Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends 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.
 
Section 5.  Stockholders List .  The officer who has charge of the stock ledger of the Corporation shall make, at least 10 days before every meeting of the stockholders, a complete list of the stockholders entitled to vote at such meeting arranged in alphabetical order, 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, for a period of at least 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, and/or (ii) during ordinary business hours, at the principal place of business of the Corporation.  In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation.  If the meeting is to be held at a 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
 
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accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.
 
Section 6.  Quorum .  Except as otherwise provided by applicable law or by the Corporation’s certificate of incorporation, a majority of the outstanding shares of the Corporation entitled to vote, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders.  If less than a majority of the outstanding shares are represented at a meeting, a majority of the shares so represented may adjourn the meeting from time to time in accordance with Section 7 of this Article II, until a quorum shall be present or represented.
 
Section 7.  Adjourned Meetings .  When a meeting is adjourned to another time and place, notice need not be given of the adjourned meeting if the time, place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting, at which the adjournment is taken.  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 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 8.  Vote Required .  When a quorum is present, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders, unless the question is one upon which by express provisions of an applicable law or of the Corporation’s certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.  Where a separate vote by class is required, the affirmative vote of the majority of shares of such class present in person or represented by proxy at the meeting shall be the act of such class, unless the question is one upon which by express provisions of an applicable law or of the Corporation’s certificate of incorporation a different vote is required, in which case such express provision shall govern and control the decision of such question.
 
Section 9.  Voting Rights .  Except as otherwise provided by the DGCL or by the certificate of incorporation of the Corporation or any amendments thereto, every stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of common stock held by such stockholder.
 
Section 10.  Proxies .  Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person(s) to act for him, her or it by proxy.  Every proxy must be signed by the stockholder granting the proxy or by his, her or its attorney-in-fact.  No proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period.  A duly executed proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power.  A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally.
 
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Section 11.  Action by Written Consent .  Unless otherwise provided in the Corporation’s 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(s) in writing, setting forth the action so taken and bearing the dates of signature of the stockholders who signed the consent(s), shall be signed by the holders of outstanding shares of stock having not less than a majority of the shares entitled to vote, or, if greater, 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, or the Corporation’s principal place of business, or an officer or agent of the Corporation having custody of the book(s) 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, provided, however, that no consent(s) delivered by certified or registered mail shall be deemed delivered until such consent(s) are actually received at the registered office.  All consents properly delivered in accordance with this Section 11 shall be deemed to be recorded when so delivered.  No written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered to the Corporation as required by this Section 11, written consents signed by the holders of a sufficient number of shares to take such corporate action are so 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.  Any action taken pursuant to such written consent(s) of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof.  Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing for any and all purposes for which the original writing could be used; provided that such copy, facsimile or other reproduction shall be a complete reproduction of the entire original writing.
 
Section 12.  Action by Electronic Transmission Consent .  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 for the purposes of this Section 12; provided that any such telegram, cablegram or other electronic transmission sets forth or is delivered with information from which the Corporation can determine (A) that the telegram, cablegram or other electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder and (B) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or electronic transmission.  The date on which such telegram, cablegram or electronic transmission is transmitted shall be deemed to be the date on which such consent was signed.  No consent given by telegram, cablegram or other electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper form 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 stockholders are recorded if, to the extent and in the manner provided by resolution of the board of directors of the Corporation.
 
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ARTICLE III
 
DIRECTORS
 
Section 1.  General Powers .  The business and affairs of the Corporation shall be managed by or under the direction of the board of directors.
 
Section 2.  Number, Election and Term of Office .  The number of directors which shall constitute the first board shall be one or more, which number may be increased or decreased from time to time by resolution of the board.  The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote in the election of directors.  The directors shall be elected in this manner at the annual meeting of the stockholders, except as provided in Section 4 of this Article III.  Each director elected shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
 
Section 3.  Removal and Resignation .  Any director or the entire board of directors may be removed at any time, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors.  Whenever the holders of any class or series are entitled to elect one or more directors by the provisions of the Corporation’s certificate of incorporation, the provisions of this Section 3 shall apply, in respect to the removal without cause of a director or directors so elected, to the vote of the holders of the outstanding shares of that class or series and not to the vote of the outstanding shares as a whole.  Any director may resign at any time upon notice given in writing or by electronic transmission to the Corporation.
 
Section 4.  Vacancies .  Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director.  Each director so chosen shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as herein provided.
 
Section 5.  Annual Meetings .  The annual meeting of each newly elected board of directors shall be held without other notice than this by-law immediately after, and at the same place as, the annual meeting of stockholders.
 
Section 6.  Other Meetings and Notice .  Regular meetings, other than the annual meeting, of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by resolution of the board of directors and promptly communicated to all directors then in office.  Special meetings of the board of directors may be called by or at the request of the president or vice president on at least 24 hours’ notice to each director, either personally, by telephone, by mail, by telegraph and/or by electronic transmission.  In like manner and on like notice, the president must call a special meeting on the written request of at least a majority of the directors.
 
Section 7.  Quorum, Required Vote and Adjournment .  A majority of the total number of directors shall constitute a quorum for the transaction of business.  The vote of a majority of directors present at a meeting at which a quorum is present shall be the act of the board of directors.  If a quorum shall not be present at any meeting of the board of directors, the
 
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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 8.  Committees .  The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation, which to the extent provided in such resolution or these by-laws shall have and may exercise the powers of the board of directors in the management and affairs of the corporation except as otherwise limited by law.  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 the committee.  Such committee(s) shall have such name(s) as may be determined from time to time by resolution adopted by the board of directors.  Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required.
 
Section 9.  Committee Rules .  Each committee of the board of directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the board of directors designating such committee.  Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum.  In the event that a member and that member’s alternate, if alternates are designated by the board of directors as provided in Section 8 of this Article III, of such committee is or are absent or disqualified, the member(s) thereof present at any meeting and not disqualified from voting, whether or not such member(s) constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in place of any such absent or disqualified member.
 
Section 10.  Communications Equipment .  Members of the board of directors or any committee thereof may participate in and act at any meeting of such board or committee through the use 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 the meeting pursuant to this Section 10 shall constitute presence in person at the meeting.
 
Section 11.  Waiver of Notice and Presumption of Assent .  Any member of the board of directors or any committee thereof who is present at a meeting shall be conclusively presumed to have waived notice of such meeting except when such member attends 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.  Such member shall be conclusively presumed to have assented to any action taken unless his or her dissent shall be entered in the minutes of the meeting or unless his or her written dissent to such action shall be filed with the person acting as the secretary of the meeting before the adjournment thereof or shall be forwarded by registered mail to the secretary of the Corporation immediately after the adjournment of the meeting.  Such right to dissent shall not apply to any member who voted in favor of such action.
 
Section 12.  Action by Written Consent .  Unless otherwise restricted by the Corporation’s certificate of incorporation, 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 members of the board or committee, as the case may be, consent thereto in writing or by
 
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electronic transmission, and the writing(s) or electronic transmission or transmissions are filed with the minutes of proceedings of the board or 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.
 
ARTICLE IV
 
OFFICERS
 
Section 1.  Number .  The officers of the Corporation shall be elected by the board of directors and shall consist of a chairman, if any is elected, a president, one or more vice presidents, a secretary, a treasurer, and such other officers and assistant officers as may be deemed necessary or desirable by the board of directors.  Any number of offices may be held by the same person.  In its discretion, the board of directors may choose not to fill any office for any period as it may deem advisable.
 
Section 2.  Election and Term of Office .  The officers of the Corporation shall be elected annually by the board of directors at its first meeting held after each annual meeting of stockholders or as soon thereafter as conveniently may be.  The president shall appoint other officers to serve for such terms as he or she deems desirable.  Vacancies may be filled or new offices created and filled at any meeting of the board of directors.  Each officer shall hold office until a successor is duly elected and qualified or until his or her earlier death, resignation or removal as hereinafter provided.
 
Section 3.  Removal .  Any officer or agent elected by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the Corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed.
 
Section 4.  Vacancies .  Any vacancy occurring in any office because of death, resignation, removal, disqualification or otherwise, may be filled by the board of directors for the unexpired portion of the term by the board of directors then in office.
 
Section 5.  Compensation .  Compensation of all officers shall be fixed by the board of directors, and no officer shall be prevented from receiving such compensation by virtue of his or her also being a director of the Corporation.
 
Section 6.  The Chairman of the Board .  The Chairman of the Board, if one shall have been elected, shall be a member of the board and an officer of the Corporation.  He shall perform the duties as may from time to time be assigned to him by the board of directors.
 
Section 7.  The President .  The president shall be the chief executive officer of the Corporation.  The president (i) shall preside at all meetings of the stockholders and board of directors at which he or she is present; (ii) subject to the powers of the board of directors, shall have general charge of the business, affairs and property of the Corporation, and control over its officers, agents and employees; and (iii) shall see that all orders and resolutions of the board of directors are carried into effect.  The president shall have such other powers and perform such
 
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other duties as may be prescribed by the board of directors or as may be provided in these by-laws.
 
Section 8.  Vice Presidents .  The vice president, if any, or if there shall be more than one, the vice presidents in the order determined by the board of directors shall, in the absence or disability of the president, act with all of the powers and be subject to all the restrictions of the president.  The vice presidents shall also perform such other duties and have such other powers as the board of directors, the president or these by-laws may, from time to time, prescribe.
 
Section 9.  The Secretary and Assistant Secretaries .  The secretary shall attend all meetings of the board of directors, all meetings of the committees thereof and all meetings of the stockholders and record all the proceedings of the meetings in a book(s) to be kept for that purpose.  Under the president’s supervision, the secretary (i) shall give, or cause to be given, all notices required to be given by these by-laws or by law; (ii) shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time, prescribe; and (iii) shall have custody of the corporate seal of the Corporation.  The secretary, or an assistant secretary, shall have authority to affix the corporate seal to any instrument requiring it and when so affixed, it may be attested by his or her signature or by the signature of such assistant secretary.  The board of directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his or her signature.  The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors, the president, or secretary may, from time to time, prescribe.
 
Section 10.  The Treasurer and Assistant Treasurers .  The treasurer (i) shall have the custody of the corporate funds and securities; (ii) shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation; (iii) shall deposit all monies and other valuable effects in the name and to the credit of the Corporation as may be ordered by the board of directors; (iv) shall cause the funds of the Corporation to be disbursed when such disbursements have been duly authorized, taking proper vouchers for such disbursements; (v) shall render to the president and the board of directors, at its regular meeting or when the board of directors so requires, an account of the Corporation; and (vi) shall have such powers and perform such duties as the board of directors, the president or these by-laws may, from time to time, prescribe.  If required by the board of directors, the treasurer shall give the Corporation a bond (which shall be rendered every six years) in such sums and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of the office of treasurer and for the restoration to the Corporation, in case of death, resignation, retirement, or removal from office, of all books, papers, vouchers, money, and other property of whatever kind in the possession or under the control of the treasurer belonging to the Corporation.  The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors, shall in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer.  The assistant treasurers shall perform such other duties and have such other powers as the board of directors, the president or treasurer may, from time to time, prescribe.
 
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Section 11.  Other Officers, Assistant Officers and Agents .  Officers, assistant officers and agents, if any, other than those whose duties are provided for in these by-laws, shall have such authority and perform such duties as may from time to time be prescribed by resolution of the board of directors.
 
Section 12.  Absence or Disability of Officers .  In the case of the absence or disability of any officer of the Corporation and of any person hereby authorized to act in such officer’s place during such officer’s absence or disability, the board of directors may by resolution delegate the powers and duties of such officer to any other officer or to any director, or to any other person whom it may select.
 
ARTICLE V
 
CERTIFICATES OF STOCK
 
Section 1.  Form .  Every holder of stock in the Corporation shall be entitled to have a certificate, signed by, or in the name of the Corporation by (i) the chairman or vice chairman of the board of directors, or the president or a vice-president and (ii) 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; provided that the board of directors may provide by resolution or resolutions that some or all of the outstanding shares shall be uncertificated shares.  If shares are certificated and such a certificate is countersigned (1) by a transfer agent or an assistant transfer agent other than the Corporation or its employee or (2) by a registrar, other than the Corporation or its employee, the signature of any such chairman of the board, president, vice-president, secretary, or assistant secretary may be facsimiles.  In case any officer(s) who have signed, or whose facsimile signature(s) have been used on, any such certificate(s) shall cease to be such officer(s) of the Corporation whether because of death, resignation or otherwise before such certificate(s) have been delivered by the Corporation, such certificate(s) may nevertheless be issued and delivered as though the person or persons who signed such certificate(s) or whose facsimile signature(s) have been used thereon had not ceased to be such officer(s) of the Corporation.  All certificates for shares shall be consecutively numbered or otherwise identified.  The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the Corporation.  Shares of stock of the Corporation shall only be transferred on the books of the Corporation by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon surrender to the Corporation of the certificate(s) for such shares endorsed by the appropriate person(s), with such evidence of the authenticity of such endorsement, transfer, authorization, and other matters as the Corporation may reasonably require, and accompanied by all necessary stock transfer stamps.  In that event, if the shares so transferred are represented by certificates, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate(s), and record the transaction on its books.  The board of directors may appoint a bank or trust company organized under the laws of the United States or any state thereof to act as its transfer agent or registrar, or both in connection with the transfer of any class or series of securities of the Corporation.
 
Section 2.  Lost Certificates .  The board of directors may direct a new certificate(s) to be issued in place of any certificate(s) previously issued by the Corporation
 
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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(s), 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(s), or his or her legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the loss, theft or destruction of any such certificate or the issuance of such new certificate.
 
Section 3.  Fixing a Record Date for Stockholder Meetings .  In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, 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 nor less than ten 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 stockholders shall be the close of business on the day immediately preceding the day on which notice is given, or if notice is waived, at the close of business on the day immediately preceding the day on which the meeting is held.  A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting.
 
Section 4.  Fixing a Record Date for Action by Written Consent .  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 date shall not be more than ten 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 statute, 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 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 statute, 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 5.  Fixing a Record Date for Other Purposes .  In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights of the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purposes of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date
 
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upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty 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.  Registered Stockholders .  Prior to the surrender to the Corporation of the certificate(s) for a share(s) of stock represented by certificates with a request to record the transfer of such share(s), or in the case of uncertificated shares prior to receipt of a request to record the transfer of such share(s), the Corporation may treat the registered owner as the person entitled to receive dividends, to vote, to receive notifications, and otherwise to exercise all the rights and powers of an owner.  The Corporation shall not be bound to recognize any equitable or other claim to or interest in such share(s) on the part of any other person, whether or not it shall have express or other notice thereof.
 
Section 7.  Subscriptions for Stock .  Unless otherwise provided for in the subscription agreement, subscriptions for shares shall be paid in full at such time, or in such installments and at such times, as shall be determined by the board of directors.  Any call made by the board of directors for payment on subscriptions shall be uniform as to all shares of the same class or as to all shares of the same series.  In case of default in the payment of any installment or call when such payment is due, the Corporation may proceed to collect the amount due in the same manner as any debt due the Corporation.
 
ARTICLE VI
 
INDEMNIFICATION
 
Section  1.                                           Indemnification of Directors and Officers .  The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL as it presently exists or may hereafter be amended, any director or officer of the Corporation 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 is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person in connection with any such Proceeding.  Notwithstanding the preceding sentence, except as otherwise provided in Section 4 of this Article VI, the Corporation shall be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized in the specific case by the board of directors.
 
Section  2.                                           Indemnification of Others .  The Corporation shall have the power to indemnify and hold harmless, to the extent permitted by applicable law as it presently exists or may hereafter be amended, any employee or agent of the Corporation who was or is made or is threatened to be made a party or is otherwise involved in any 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 an employee or agent of the Corporation or is or was serving at the request of the Corporation as a director,
 
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officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person in connection with any such Proceeding.
 
Section 3.                                           Prepayment of Expenses .  The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by any officer or director of the Corporation, and may pay the expenses incurred by any employee or agent of the Corporation, 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 person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under this Article VI or otherwise.
 
Section 4.                                           Determination; Claim .  If a claim for indemnification (following the final disposition of such Proceeding) or advancement of expenses under this Article VI is not paid in full within 60 days after a written claim therefor has been received by the Corporation the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, 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 claimant was not entitled to the requested indemnification or payment of expenses under applicable law.
 
Section 5.                                           Non-Exclusivity of Rights .  The rights conferred on any person by this Article VI shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the certificate of incorporation, these by-laws, agreement, vote of stockholders or disinterested directors or otherwise.
 
Section 6.                                           Insurance .  The Corporation may 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, partnership, joint venture, trust, enterprise or non-profit entity against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such liability under the provisions of the DGCL.
 
Section 7.                                           Other Indemnification .  The Corporation’s obligation, if any, to indemnify or advance expenses to any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such person may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.
 
Section 8.                                           Continuation of Indemnification .  The rights to indemnification and to prepayment of expenses provided by, or granted pursuant to, this Article VI shall continue notwithstanding that the person has ceased to be a director or officer of the Corporation and shall
 
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inure to the benefit of the estate, heirs, executors, administrators, legatees and distributees of such person.
 
Section 9.                                           Amendment or Repeal .  The provisions of this Article VI shall constitute a contract between the Corporation, on the one hand, and, on the other hand, each individual who serves or has served as a director or officer of the Corporation (whether before or after the adoption of these by-laws), in consideration of such person’s performance of such services, and pursuant to this Article VI the Corporation intends to be legally bound to each such current or former director or officer of the Corporation.  With respect to current and former directors and officers of the Corporation, the rights conferred under this Article VI are present contractual rights and such rights are fully vested, and shall be deemed to have vested fully, immediately upon adoption of these by-laws. With respect to any directors or officers of the Corporation who commence service following adoption of these by-laws, the rights conferred under this provision shall be present contractual rights and such rights shall fully vest, and be deemed to have vested fully, immediately upon such director or officer commencing service as a director or officer of the Corporation.  Any repeal or modification of the foregoing provisions of this Article VI shall not adversely affect any right or protection (i) hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification or (ii) under any agreement providing for indemnification or advancement of expenses to an officer or director of the Corporation in effect prior to the time of such repeal or modification.
 
ARTICLE VII
 
GENERAL PROVISIONS
 
Section 1.  Dividends .  Dividends upon the capital stock of the Corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law.  Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation.
 
Section 2.  Checks, Drafts or Orders .  All checks, drafts, or other orders for the payment of money by or to the Corporation and all notes and other evidences of indebtedness issued in the name of the Corporation shall be signed by such officer(s), agent(s) of the Corporation, and in such manner, as shall be determined by resolution of the board of directors or a duly authorized committee thereof.
 
Section 3.  Contracts .  The board of directors may authorize any officer(s), or any agent(s), of the Corporation to enter into any contract or to execute 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 4.  Loans .  The Corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the Corporation or of its subsidiary, including any officer or employee who is a director of the Corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the Corporation.  The loan, guaranty or other assistance may
 
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be with or without interest, and may be unsecured or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the Corporation.  Nothing contained in this Section 4 shall be deemed to deny, limit or restrict the powers of guaranty or warranty of the Corporation at common law or under any statute.
 
Section 5.  Fiscal Year .  The fiscal year of the Corporation shall be fixed by resolution of the board of directors.
 
Section 6.  Voting Securities Owned By Corporation .  Voting securities in any other corporation held by the Corporation shall be voted by the president, unless the board of directors specifically confers authority to vote with respect thereto, which authority may be general or confined to specific instances, upon some other person or officer.  Any person authorized to vote securities shall have the power to appoint proxies, with general power of substitution.
 
Section 7.  Inspection of Books and Records .  Stockholders may inspect book and records to the extent permitted by the DGCL.
 
Section 8.  Section Headings .  Section headings in these by-laws are for convenience of reference only and shall not be given any substantive effect in limiting or otherwise construing any provision herein.
 
Section 9.  Inconsistent Provisions .  In the event that any provision of these by-laws is or becomes inconsistent with any provision of the Corporation’s certificate of incorporation, the DGCL or any other applicable law, such provision of these by-laws shall not be given any effect to the extent of such inconsistency but shall otherwise be given full force and effect.
 
ARTICLE VIII
 
AMENDMENTS
 
These by-laws may be amended, altered, or repealed and new by-laws adopted at any meeting of the board of directors by a majority vote.  The fact that the power to adopt, amend, alter, or repeal the by-laws has been conferred upon the board of directors shall not divest the stockholders of the same powers.
 
ARTICLE IX
 
EXCLUSIVE FORUM
 
Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any Director or officer or other employee of the Corporation to the Corporation or the Corporation’s Stockholders, or any action asserting a claim for aiding and abetting any such breach of fiduciary duty, (iii) any action asserting a claim against the Corporation or any Director or officer or other employee of the Corporation arising pursuant to any provision of the DGCL or the Certificate of
 
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Incorporation or these Bylaws (in each case, as they may be amended from time to time), or (iv) any action asserting a claim against the Corporation or any Director or officer or other employee of the Corporation governed by the internal affairs doctrine shall be the Court of Chancery of the State of Delaware (the “ Chancery Court ”) (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State of Delaware).
 
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Exhibit 99.1

 

Company Contact:	Investor Contact:	New Mountain Contact:	
Nicole Collins	Sharon Merrill Associates	Dana Gorman	
(978) 656-3594	(617) 542-5300	Abernathy MacGregor	
NCollins@trcsolutions.com	trr@investorrelations.com	(212) 371-5999	
 	 	dtg@abmac.com	
 
TRC Completes Merger With Affiliates of New Mountain Capital
 
LOWELL, Mass., June 21, 2017 —  TRC Companies, Inc. (NYSE: TRR) (“TRC”), a recognized leader in engineering, environmental consulting and construction-management services, today announced it has completed the previously announced merger with affiliates of New Mountain Partners IV, L.P. (“NMC”), an investment fund managed by New Mountain Capital, L.L.C. As a result of the transaction, NMC acquired TRC for $17.55 per share in cash. TRC shares will be delisted from the NYSE and will no longer be publicly traded.
 
“The completion of this transaction marks the beginning of a new chapter for TRC and is an important step in executing on our long-term growth strategy,” said TRC Chairman and Chief Executive Officer Chris Vincze. “There is an immense need for creative thinking to help solve some of the world’s toughest infrastructure and energy challenges and, with NMC’s partnership, TRC is well-positioned to do just that. NMC’s financial strength and strategic relationships will help us strengthen our commitment to our clients, increase professional opportunities for our staff and accelerate our culture of innovation—all with the intent of building a more valuable company.”
 
Houlihan Lokey Capital, Inc. acted as financial advisor to TRC and Covington & Burling LLP acted as legal advisor to TRC.
 
Barclays Capital Inc. and UBS Securities LLC acted as M&A advisors to NMC and Kirkland & Ellis LLP acted as legal advisor to NMC. NMC also received M&A and industry advice from EFCG (Environmental Financial Consulting Group).
 
About TRC
 
A pioneer in groundbreaking scientific and engineering developments since the 1960s, TRC (www.TRCsolutions.com) is a national engineering, environmental consulting and construction management firm that provides integrated services to the power, environmental, infrastructure and oil and gas markets. TRC serves a broad range of commercial, industrial and government clients, implementing complex projects from initial concept to delivery and operation. TRC delivers results that enable clients to achieve success in a complex and changing world. Follow us on Twitter at @TRC_Companies and on LinkedIn.
 
About New Mountain Capital
 
New Mountain Capital is a New York-based investment firm that emphasizes business building and growth, rather than debt, as it pursues long-term capital appreciation. The firm currently

 
manages private equity, public equity and credit funds with approximately $15 billion in aggregate capital commitments. New Mountain Capital seeks out what it believes to be the highest-quality growth leaders in carefully selected industry sectors and then works intensively with management to build the value of these companies. For more information on New Mountain Capital, please visit www.newmountaincapital.com.
 
Forward-Looking Statements
 
Certain statements in this press release may be forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 with respect to the business combination among certain affiliates of NMC and TRC, including statements regarding the benefits of the transaction.  Readers can generally identify these statements by forward-looking words such as “will,” “may,” “expects,” “plans,” “anticipates,” “believes,” “estimates,” or other words of similar import. Readers should consider statements that contain these words carefully because they discuss TRC’s future expectations or state other “forward-looking” information. There may be events in the future that TRC is not able to accurately predict or control and that may cause its actual results to differ materially from the expectations described in its forward-looking statements. Readers are cautioned that all forward-looking statements involve risks and uncertainties, and actual results may differ materially from those discussed as a result of various factors, including, but not limited to, (i) the effect of the transaction on TRC’s business relationships, operating results, and business generally, (ii) risks that the transaction disrupt current plans and operations of TRC and potential difficulties in TRC’s employee retention as a result of the transaction,  and (iii) the ability of NMC to implement its plans, forecasts, and other expectations with respect to TRC’s business and realize additional opportunities for growth and innovation. In addition, please refer to TRC’s reports filed with the U.S. Securities and Exchange Commission, including its Annual Report on Form 10-K for the fiscal year ended June 30, 2016 and subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. These filings identify and address other important risks and uncertainties that could cause events and results to differ materially from those contained in the forward-looking statements set forth in this communication. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and TRC assumes no obligation and does not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise, except as required by law.