Matthew Wright v. Michael Farello

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

MATTHEW WRIGHT, on behalf of )
himself and all similarly situated )
stockholders of BETTER HOME & )
FINANCE HOLDING COMPANY, )
)
Plaintiff, )
)
v. ) C.A. No. 2024-0306-KSJM
)
MICHAEL FARELLO, VISHAL )
GARG, ARNAUD MASSENET, )
PRABHU NARASIMHAN, STEVEN )
SARRACINO, HARIT TALWAR, )
RIAZ VALANI, and BETTER HOME )
& FINANCE HOLDING COMPANY, )
)
Defendants. )

MEMORANDUM OPINION

Date Submitted: April 1, 2025
Date Decided: October 27, 2025

Kimberly A. Evans, Irene R. Lax, Daniel M. Baker, Robert Erikson, BLOCK &
LEVITON LLP, Wilmington, Delaware; Jason M. Leviton, BLOCK & LEVITON LLP,
Boston, Massachusetts; J. Abbott R. Cooper, ABBOTT COOPER PLLC, Stamford,
Connecticut; Counsel for Plaintiff Matthew Wright.

Michael A. Pittenger, Nicholas D. Mozal, Megan R. Thomas, POTTER ANDERSON
& CORROON LLP, Wilmington, Delaware; Mark Elliott, Rachel Rodriguez,
ELLIOTT KWOK LEVINE JAROSLAW NEILS LLP, New York, New York; Counsel
for Defendants Michael Farello, Vishal Garg, Arnaud Massenet, Prabhu Narasimhan,
Steven Sarracino, Harit Talwar, Riaz Valani, and Better Home & Finance Holding
Company.

McCORMICK, C.
The stockholder plaintiff claims that the corporate defendant’s advance-notice

bylaw is facially invalid. Facial invalidity is difficult to demonstrate. As the

Delaware Supreme Court recently held, a facial challenge to a bylaw can only succeed

where “the bylaw cannot operate lawfully under any set of circumstances.” 1 The

defendants argue that the plaintiff has not met this standard, and this decision

grants the defendants’ motion on that basis. The plaintiff successfully demonstrated

that the challenged bylaw is long, broad, and overly complicated. But the plaintiff

has not demonstrated that the bylaw cannot operate lawfully under any set of

circumstances. The defendants also argue that the plaintiff’s facial challenge is

unripe. A ripeness determination requires a commonsense assessment of whether

the interests of the party seeking relief outweigh the concerns in postponing review

until the question arises in some more concrete form. Here, that commonsense

assessment favors resolving the claim on the merits, as this decision does.

I. FACTUAL BACKGROUND

The facts are drawn from the Verified Class Action Complaint (the

“Complaint”) and the documents it incorporates by reference.2

Better Home & Finance Holding Company (“Better Home” or the “Company”)

is a Delaware corporation headquartered in New York. Better Home offers mortgage

and home equity loans, title and homeowner’s insurance, home inspections, and real

estate agent services. Better Home’s Board of Directors (the “Board”) comprises

1 Kellner v. AIM ImmunoTech Inc., 320 A.3d 239, 258 (Del. 2024).

2 C.A. No. 2024-0306-KSJM, Docket (“Dkt.”) 1 (“Compl.”).
Michael Farello, Vishal Garg (CEO), Arnaud Massenet, Prabhu Narasimhan, Steven

Sarracino, Harit Talwar (Chairman of the Board), and Riaz Valani (the “Director

Defendants,” and with Better Home, “Defendants”).

On August 22, 2023, the Company adopted its current bylaws, including the

challenged advance-notice bylaw (the “Bylaw”). The text of the Bylaw is included at

the end of this decision and quoted in the Legal Analysis.

Plaintiff Matthew Wright (“Plaintiff”) has been a Better Home stockholder

since October 17, 2023. He filed suit on March 26, 2024, seeking declaratory relief

invalidating the Bylaw (Count I), and alleging that the Director Defendants breached

their fiduciary duties by adopting the Bylaw (Count II).3

Defendants moved to dismiss the Complaint on October 8, 2024. For the first

time in their reply brief, Defendants raised ripeness as a basis for dismissal. This

prompted a sur-reply from Plaintiff. The parties completed briefing on January 29,

2025.4 The court heard argument on the motion on March 28, 2025.5 At the court’s

request, on April 1, 2025 Plaintiff submitted a letter on the status of its similar

advance-notice bylaw cases.6

3 See generally, Dkt. 1.

4 See Dkts. 21 (Defs.’ Opening Br.), 23 (Pl.’s Answering Br.), 28 (Defs.’ Reply Br.), 36

(Pl.’s Sur-Reply Br.).
5 See Dkts. 39 (Judicial Action Form), 43 (“3/28/25 Hr’g Tr.”).

6 3/28/25 Hr’g Tr. at 19:15–20:16; Dkt. 42.
The letter indicates that Plaintiff’s counsel
has ten other cases concerning advance-notice bylaws pending before this court.
Counsel has represented that several of those cases are stayed pending the outcome
of this case. The court dismissed one case, Siegel, for lack of subject matter
jurisdiction. See Siegel v. Morse, C.A. No. 2024-0628-NAC (Del. Ch. Apr. 14, 2025)

2
II. LEGAL ANALYSIS

Defendants move to dismiss the Complaint under Court of Chancery Rule

12(b)(6). “[T]he governing pleading standard in Delaware to survive a motion to

dismiss is reasonable ‘conceivability.’”7 When considering a Rule 12(b)(6) motion, the

court must “accept all well-pleaded factual allegations in the [c]omplaint as true . . .,

draw all reasonable inferences in favor of the plaintiff, and deny the motion unless

the plaintiff could not recover under any reasonably conceivable set of circumstances

susceptible of proof.”8 The court, however, need not “accept conclusory allegations

unsupported by specific facts or . . . draw unreasonable inferences in favor of the non-

moving party.”9 Under this standard, Defendants argue that Plaintiff has not stated

a claim for invalidity. Defendants further argue that Plaintiff’s claim for facial

invalidity is not ripe. This analysis begins with Defendants’ ripeness argument.

A. Ripeness

“A ripeness determination requires a commonsense assessment of whether the

interests of the party seeking immediate relief outweigh the concerns of the court in

(ORDER); see also Siegel v. Morse, 2025 WL 1101624, at *5, *8 (Del. Ch. Apr. 14,
2025), appeal docketed sub nom., In re AES Corp. & Owens Corning, C.A. No. 218,
2025C (Del. May 14, 2025). That decision is currently on appeal. See C.A. No. 2024-
0628-NAC, Dkt. 84 (Del. Ch. May 14, 2025) (Notice of Appeal). As discussed below,
Siegel did not involve a facial challenge, so it has no bearing on this decision. And
this decision does not address any of the issues on appeal in Siegel.
7 Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 537 (Del.

2011).
8 Id. at 536 (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)).

9 Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (citing Clinton

v. Enter. Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009)), overruled on other grounds
by, Ramsey v. Ga. S. Univ. Advanced Dev. Ctr., 189 A.3d 1255 (Del. 2018).

3
postponing review until the question arises in some more concrete and final form.”10

A dispute is ripe if “litigation sooner or later appears to be unavoidable” and “the

material facts are static.”11

Defendants argue that Plaintiff’s claim is not ripe because “Plaintiff does not—

and cannot—allege that he or any other stockholder attempted to nominate a director

and does not allege that any such effort was rejected by the Board.”12

Defendants rely on Siegel, where this court dismissed a stockholder suit

challenging an advance-notice bylaw as unripe because the stockholder had not

nominated a candidate for election.13 But the plaintiff in Siegel argued that enhanced

scrutiny applied and expressly “disclaimed a facial validity challenge[.]”14 Plaintiff

here asserts a facial challenge. A facial challenge presents a pure question of law,

the material facts are static, and there is thus no need to postpone resolution to allow

10 XL Specialty Ins. Co. v. WMI Liquidating Tr., 93 A.3d 1208, 1217 (Del. 2014)

(citation modified); see also Nask4Innovation Sp. Z.o.o. v. Sellers, 2022 WL 4127621,
at *4 (Del. Ch. Sept. 12, 2022) (“In determining whether a dispute is ripe, the Court
must take a practical view of all relevant facts and make a common-sense
determination of whether adjudicating a dispute at present is a prudent use of
judicial resources.”);
11 XL Specialty, 93 A.3d at 1217 (quoting Julian v. Julian, 2009 WL 29371212, at *3

(Del. Ch. Sept. 9, 2009)) (citation modified).
12 Defs.’ Reply Br. at 19.

13 Siegel, 2025 WL 1101624, at *6. The court raised the issue of ripeness during oral
argument on the stockholder plaintiff’s motion to expedite and the defendants’ motion
to stay proceedings. See Siegel v. Morse, C.A. No. 2024-0628-NAC, at 11 (Del. Ch.
June 26, 2024) (TRANSCRIPT).
14 Siegel, 2025 WL 1101624, at *5.

4
for the question to arise in a more concrete form. For that reason, Delaware courts

routinely resolve facial challenges without undertaking ripeness analyses.15

By arguing that this court’s consideration of a facial challenge should be

conditioned on the presence of factors that would ripen an as-applied challenge,

Defendants call for a change in Delaware law.16 That change would be problematic.

As discussed below, stockholders pursuing facial challenges assume an onerous

burden under Kellner. They must demonstrate that the corporate instrument cannot

operate lawfully in any circumstance. A facial challenge to an advance-notice bylaw

claims that a mandatory rule governing stockholder nomination of directors does not

work ever, in any circumstance. Deeming such a claim unripe would run the risk of

15 See, e.g., Kellner, 320 A.3d at 262–63 (resolving facial validity claim challenging

bylaw without evaluating ripeness); Frecter v. Zier, 2017 WL 345142, at *2–4 (Del.
Ch. Jan. 24, 2017) (same); In re VAALCO Energy, Inc. S’holder Litig., C.A. No. 11775-
VCL, at 59–69 (Del. Ch. Dec. 21, 2015) (TRANSCRIPT) (same); Gorman v. Salamone,
2015 WL 4719681, at *5–6 (Del. Ch. July 31, 2015) (same); Sinchareonkul v.
Fahnemann, 2015 WL 292314, at *6–8 (Del. Ch. Jan. 22, 2015) (same).
16 While this lawsuit was pending, two Delaware attorneys published an article
making a more robust version of this argument. See John Mark Zeberkiewicz &
Robert B. Greco, Not All Facial Challenges Are Ripe, 80 Bus. Law. 747 (2025).
Positing that a facial challenge is “not always ripe,” the authors argue that Delaware
courts should not “expend resources resolving the issues raised” by facial challenges
to corporate instruments. Id. at 788. They acknowledge that Delaware courts have
“resolved facial challenges to governance provisions with some degree of regularity”
over the past decade. Id. at 761. They argue, however, that each case resolving a
facial validity challenge involved case-specific factors warranting resolution of the
claim. The case-specific factors identified by the authors include: present harm to the
stockholder plaintiff; parallel as-applied challenges; an ongoing proxy contest; or the
fact that the challenged bylaw had been adopted by multiple corporations. Id. at 755–
57, 763–72, 775–88. Fairly read, however, Delaware’s commonsense approach to
ripeness does not require a plus factor, even though many were present in past
decisions resolving facial validity. If a case-specific plus factor is required to render
a facial challenge ripe, then the fact that ten cases are stayed pending this decision
checks that box here.

5
leaving uncured wholly inoperable rules governing director elections. That is

extreme. If Defendants seek a rule that would discourage frivolous lawsuits, then

the legal standard expressed in Kellner does so. Rejecting facial challenges to

advance-notice bylaws on ripeness grounds risks discouraging meritorious lawsuits.

Ultimately, Delaware’s approach to ripeness leaves the determination to the

discretion of the court.17 For the benefit of the parties here (and those in the ten other

matters involving similar challenges), commonsense dictates resolving the matter on

its merits.

B. Invalidity

Under Delaware law, bylaws are “presumed to be valid” and must be

interpreted “in a manner consistent with the law.”18 A bylaw is facially valid if it is

“authorized by the Delaware General Corporation Law (DGCL), consistent with the

corporation’s certificate of incorporation, and [] not []otherwise prohibited.”19 A bylaw

is “otherwise prohibited” if it “cannot operate lawfully under any set of

17 See Stroud v. Milliken Enters., Inc., 552 A.2d 476, 480 (Del. 1989) (“The reasons for

not rendering a hypothetical opinion must be weighed against the benefits to be
derived from the rendering of a declaratory judgment. This weighing process requires
“the exercise of judicial discretion[.]”); Horizon Pers. Commc’ns, Inc. v. Sprint Corp.,
2006 WL 2337592, at *17 (Del. Ch. Aug. 4, 2006) (“The ripeness of a dispute is a
matter entrusted to the discretion of the trial court.” (quoting UbiquiTel Inc. v. Sprint
Corp., 2006 WL 44424, at *2 (Del. Ch. Jan. 4, 2006))) (citation modified).
18 Frantz Mfg. Co. v. EAC Indus., 501 A.2d 401, 407 (Del. 1985).

19 ATP Tour, Inc. v. Deutscher Tennis Bund, 91 A.3d 554, 557–58 (Del. 2014).

6
circumstances.”20 The Delaware Supreme Court further clarified this concept in

Kellner, holding that an unintelligible bylaw is facially invalid.21

This analysis begins with a close reading of the Bylaw and then turns to

Plaintiff’s arguments for invalidity.

1. The Advance-Notice Bylaw

The Bylaw sets the ground rules for nominating directors for election at an

annual stockholder meeting.22 It has two basic requirements. It establishes a

nomination window, requiring a nominating stockholder to notify Better Home of its

director nomination in writing 90 to 120 days before the one-year anniversary of the

prior year’s annual stockholder meeting.23 It also sets disclosure requirements,

stating what information the nominating stockholder must include in the notice.

Plaintiff challenges the Bylaw’s disclosure requirements. Three terms defined

in the Bylaw are relevant to Plaintiff’s challenge: “Proposing Person,” “Associated

Person,” and “Acting in Concert.”

The notice must contain information about the director nominee as well as each

Proposing Person.24 The Bylaw defines a Proposing Person as:

20 Kellner, 320 A.3d at 258.

21 Kellner, 320 A.3d at 263.

22 By its plain terms, the Bylaw sets the “exclusive means for a stockholder to make

nominations . . . at an annual meeting of stockholders, and such stockholder must
fully comply with the notice and other procedures set forth in this Section 1.11 to
make such nominations . . . before an annual meeting.” Compl., Ex. 1 (“Bylaws”) §
1.11.1(a)(iii).
23 See id. § 1.11.1(b)

24 Id. § 1.11.1(b)(x), (z).

7
(1) the stockholder providing the notice of business
proposed to be brought before an annual meeting or
nomination of persons for election to the Board at a
stockholder meeting, (2) the beneficial owner or beneficial
owners, if different, on whose behalf the notice of business
proposed to be brought before the annual meeting or
nomination of persons for election to the Board at a
stockholder meeting is made, and (3) any Associated
Person on whose behalf the notice of business proposed to
be brought before the annual meeting or nomination of
persons for election to the Board at a stockholder meeting
is made[.]25

As defined, Proposing Person includes any Associated Person. The Bylaw

defines Associated Person as:

with respect to any subject stockholder or other person
(including any proposed nominee) (1) any person directly
or indirectly controlling, controlled by or under common
control with such stockholder or other person, (2) any
beneficial owner of shares of stock of the Corporation
owned of record or beneficially by such stockholder or other
person, (3) any associate . . . of such stockholder or other
person, and (4) any person directly or indirectly controlling,
controlled by or under common control or Acting in Concert
with any such Associated Person[.]26

As defined, Associated Person includes any person with whom a Proposing

Person is Acting in Concert. With bracketed language inserted and text and

formatting altered to aid this analysis, the Bylaw defines Acting in Concert as follows:

[A] person shall be deemed to be “Acting in Concert” with
another person if such person

[Part A] knowingly acts (whether or not pursuant to an
express agreement, arrangement or understanding) [1] in
concert with, or [2] toward a common goal relating to the

25 Id. § 1.11.3(c)(iii).

26 Id. § 1.11.3(c)(ii).

8
management, governance or control of the Corporation in
substantial parallel with, such other person

[Part B] . . . [1] [i] where each person is conscious of the
other person’s conduct or intent and [ii] this awareness is
an element in their decision-making processes and

[Part C] at least one additional factor suggests that such
persons intend to act in concert or in substantial parallel,
which such additional factors may include, without
limitation, [1] exchanging information (whether publicly or
privately), [2] attending meetings, [3] conducting
discussions or [4] making or soliciting invitations to act in
concert or in substantial parallel;

[The Carve-Out] provided, that a person shall not be
deemed to be Acting in Concert with any other person
solely as a result of the solicitation or receipt of revocable
proxies or consents from such other person in response to a
solicitation made pursuant to, and in accordance with,
Section 14(a) (or any successor provision) of the Exchange
Act by way of a proxy or consent solicitation statement filed
on Schedule 14A.

[The Daisy Chain] A person Acting in Concert with
another person shall be deemed to be Acting in Concert
with any third party who is also Acting in Concert with
such other person[.]27

As reflected above, the Acting-in-Concert Provision is a sea of subparts, which

take a bit of effort to comprehend. Diving in, there are two ways to satisfy Part A.

One, the person “knowingly acts (whether or not pursuant to an express agreement,

arrangement or understanding) . . . in concert with . . . such other person.”28 Or two,

the person “knowingly acts (whether or not pursuant to an express agreement,

arrangement or understanding) . . . toward a common goal relating to the

27 Id. § 1.11.3(c)(i).

28 Id.

9
management, governance or control of the Corporation in substantial parallel with,

such other person.”29 A knowledge requirement qualifies both subparts—the person

must be acting “knowingly.” The parenthetical language, “whether or not pursuant

to an express agreement, arrangement, or understanding,” also qualifies both

subparts. The parenthetical means what it says: there is no need for any express

agreement, arrangement, or understanding. To satisfy Part A, therefore, a

stockholder could have an unstated agreement, arrangement, or understanding; or a

stockholder could have none of those.

At first glance, the first Part A subpart seems circular and not more

informative beyond the two qualifiers. It says that Acting in Concert means acting

in concert. But Delaware courts apply principles of contract interpretation to

corporate instruments.30 And those principles assume that the parties contracted

with reference to existing law.31

That interpretive principle comes into play here because, a month before the

Board adopted the Bylaw, the Delaware Supreme Court issued CCSB Financial Corp.

v. Totta.32 Totta affirmed this court’s decision invalidating a charter provision that

29 Id.

30 See BlackRock Credit Allocation Income Tr. v. Saba Cap. Master Fund, Ltd., 224

A.3d 964, 977 (Del. 2020) (holding that rules of contract interpretation apply to
corporate bylaws and charters).
31 See 11 Richard A. Lord, Williston on Contracts § 30.19 (4th Ed. 2025) (“Except when

a contrary intention is evident, the parties to a contract . . . are presumed or deemed
to have contracted with reference to existing principles of law.); id (common law
supplies “implied terms of the contract”).
32 302 A.3d 387 (Del. 2023).

10
imposed a 10% cap on votes cast by persons deemed acting in concert. 33 The trial

court held that “an undefined reference to ‘acting in concert’ cannot reasonably go

beyond” the existence of “an agreement, arrangement, or understanding.”34 And the

high court affirmed that interpretation as “legally sound,” specifically noting that the

corporate charter did not define “acting in concert.”35 The lesson of Totta is

straightforward: for “acting in concert” to “go beyond” requiring “an agreement,

arrangement, or understanding,” it must be defined.

The first Part A subpart applies the lesson of Totta by defining Acting in

Concert to not require an express agreement, arrangement, or understanding. In this

way, the first Part A subpart is not circular; rather, it responds to Totta.

The second Part A subpart establishes other ways to Act in Concert. It is

broadly worded to include working toward any “common goal relating to the

management, governance, or control of the [Company.]”36 Goals related to

“management, governance, or control” is a broad set of goals that seem to cover

everything related to the Company. This subpart also adopts the “substantial

parallel” language commonly included in stockholder rights plans to capture “wolf

pack” activity.37 The purpose of the “substantial parallel” language is to capture

33 Totta v. CCSB Fin. Corp., 2022 WL 1751741 (Del. Ch. May 31, 2022).

34 Id. at *25 (emphasis added).

35 Totta, 302 A.3d at 402–03.

36 Bylaws § 1.11.3(c)(i).

37 In re Williams Cos. S’holder Litig., 2021 WL 754593, at *11 (Del. Ch. Feb. 26, 2011).

11
“conscious parallelism that deliberately stops short of an explicit agreement.”38 The

“substantial parallel” language thus is intended to expand and not restrict Part A.

There is only one way to satisfy Part B, which has two parts. One, a person

must be “conscious of the other person’s conduct or intent.”39 And two, “this

awareness” must be “an element in their decision-making processes.”40 Restated, a

person is acting in concert with another because in part the person is aware of the

other’s action or intent. Framed this way, Part B seems to introduce the concept of

causation (“because”) without using the language of causation (instead saying that it

must be “an element in the decision making”).

There are many ways to satisfy Part C. It requires “at least one additional

factor” that “suggests that such persons intend to act in concert or in substantial

parallel.”41 It provides four “plus” factors that would satisfy Part C but also makes

clear that the list is not exhaustive.

Each of Parts A through C must be met. Putting their requirements together,

a stockholder is Acting in Concert with another person where: [A] the stockholder

knowingly acts in concert with the other person, or knowingly acts in substantial

parallel toward a common goal relating to the management, governance or control of

the Corporation; [B] the other person’s conduct or intent is an element in the

stockholder’s decision-making processes; and [C] at least one plus factor is present.

38 Id.

39 Bylaws § 1.11.3(c)(i).

40 Id.

41 Id.

12
After Parts A through C, there is a carve-out. Under the carve-out, even if each

of the A through C requirements are met, a person will not be Acting in Concert

“solely as a result” of the proxy solicitation process described in the carve-out.42

Last, there is the “daisy chain,” which uses the transitive property to extend

the Associated Person: If Parts A through C are satisfied between Person 1 and

Person 2, and Parts A through C are satisfied between Person 2 and Person 3, then

Person 1 and Person 3 are Acting in Concert.

Atop all of this, a portion of the Bylaw not quoted above requires a nominating

stockholder to regularly update the notice “so that the information provided or

required to be provided in such notice is true and correct in all material respects[.]” 43

2. The Advance-Notice Bylaw Is Not Facially Invalid.

Plaintiff argues that the Bylaw is invalid for two reasons: one, it is

unintelligible; and two, complying with it is impossible.

a. Is It Unintelligible?

Kellner instructs that an unintelligible bylaw is invalid. When referring to

written words, “unintelligible” means that the words are incomprehensible.44 That

42 This carve-out distinguishes the Bylaw from the advance-notice bylaw challenge in

In re Versum Materials, Inc. Stockholders Litigation, Consol. C.A. No. 2019-0206-
JTL, at 52, 60 (Del. Ch. July 16, 2020) (TRANSCRIPT) (expressing doubt about the
validity of a rights plan containing an action-in-concert provision that aggregated the
holdings of stockholders who interacted during a proxy solicitation process).
43 See id. § 1.11.1(b).

44 See Unintelligibility, Black’s Law Dictionary (12th ed. 2024) (“Incomprehensibility;

the quality of being incapable of being understood.”); Unintelligible, Merriam-
Webster, available at https://www.merriam-webster.com/dictionary/unintelligible
[https://perma.cc/H26K-XCSM] (last visited Oct. 7, 2025) (“unable to be understood

13
is, a person cannot comprehend their meaning. Kellner captures the commonsense

understanding that sometimes a complicated provision is so convoluted as to make

zero sense. When a rule crosses the line from hard-to-understand to unintelligible,

then no one will know how to apply it. At that point, the rule “cannot operate lawfully

under any set of circumstances” because it cannot operate at all.45

The Bylaw is a lot to take in. Parts of it are quite broad. And others are

confusing. But does it cross the line to unintelligible? Plaintiff says yes for roughly

four reasons: it is circular; it is overbroad; it imputes uniquely human conduct to

entities; and it requires a nominating stockholder to identify persons unknown to it.

First, Plaintiff criticizes Part A as circular (because “Acting in Concert” means

“acting in concert”).46 Plaintiff argues that this is problematic based on Totta.

Plaintiff reads Totta to hold that “acting in concert” means “only the existence of an

agreement, arrangement, or understanding.”47 As discussed above, however, that is

true only in the absence of a definition. Read properly, the purpose of Part A is to

eliminate the default meaning ascribed to it in Totta. This aspect of the Bylaw,

therefore, does not render it unintelligible.

or comprehended”); Unintelligible, Dictionary.com, available at
https://www.dictionary.com/browse/ unintelligible [https://perma.cc/9SL6-XQFA]
(last visited Oct. 7, 2025) (defining unintelligible as “not capable of being
understood”); see also Lorillard Tobacco Co. v. Am. Legacy Found., 903 A.2d 728, 738
(Del. 2006) (“Delaware courts look to dictionaries for assistance in determining the
plain meaning of terms which are not defined.”).
45 Kellner, 320 A.3d at 258.

46 Pl.’s Answering Br. at 12.

47 Id. (discussing Totta) (citation modified).

14
Second, Plaintiff criticizes the breadth of conduct covered by Parts A through

C.48 Plaintiff says that “relating to the management, governance or control of the

Corporation” is “unworkably vague” and “would encompass something as universal

as a general desire for improved management of the Company.”49 Plus, the subject-

matter requirement in the second Part A subpart does not limit the scope of the first

subpart. As a result, “two people who consciously acted together for any purpose,

including a purpose totally unrelated to ‘the management, governance or control of

the Corporation,’ would be deemed Acting in Concert.”50 Relatedly, Plaintiff says that

the Bylaw does not explain what “conduct or intent” is relevant to Part B, and the

non-exclusive list of Part C “covers a potentially infinite set of unenumerated

actions.”51

The substance of Plaintiff’s criticism is dead on—Parts A through C are broad

and easily satisfied. Part A’s first subpart’s only purpose is to disclaim the common-

law meaning of “acting in concert.” The subject-matter clause of Part A’s second

subpart (“relating to management, governance or control”) seems to include all acts

related to the Company. Part B’s reference to “conduct or intent” captures a large

swath of human and entity conduct, as does Part C’s non-exhaustive list of plus

factors evidencing intent to act in substantial parallel. Parts A through C’s single

limiting principle is the knowledge requirement.

48 Id.

49 Id.

50 Id. at 13.

51 Id. at 12–13.

15
But Plaintiff’s conclusion is misguided—a provision’s breadth does not

necessarily render it unintelligible. Broad in this context means “extending far and

wide.”52 That is not the same as incomprehensible. Parts A through C are broad

because they cover an expansive set of conduct. But (with a good bit of work) a

stockholder can comprehend them.

Third, Plaintiff takes issue with including entities in the definition of

Proposing Person.53 The Acting in Concert provision requires a Proposing Person to

disclose “any knowledge that another person or entity is Acting in Concert.”54 Yet, as

Plaintiff notes, only sentient beings are capable of some of the conduct covered by the

definition—humans uniquely have “consciousness,” “intent,” and “awareness,” and

“attend[] meetings.”55 Plaintiff argues that because entities cannot take actions

uniquely attributable to humans, there is no way to discern when entities are Acting

in Concert.

Plaintiff’s third argument fights against the fact that—at least for now—

humans operate entities. Through humans, entities can do things like express an

intent, become aware, and attend meetings. Granted, one would typically not go so

far as to say that a corporation has consciousness merely because a human operates

52 Broad, Merriam-Webster, available at https://www.merriam-webster.com/
dictionary/broad [https://perma.cc/J6W6-CQR7] (last visited Oct. 6, 2025); see also
Veto v. Am. Fam. Mut. Ins. Co., 815 N.W.2d 713, 718 (Wis. Ct. App. 2012) (defining
“broad” as “of great breadth” and “not limited or narrow; of extensive range or scope”
(citing Broad, Dictionary.com)).
53 Pl.’s Answering Br. at 14.

54 See Bylaws § 1.11.3(b)(z)(viii) (emphasis added).

55 Pl.’s Answering Br. at 14 (citation modified).

16
the corporation. Still, the reality is that a nominating stockholder—be it an entity or

a person—can in fact act conscious of an entity’s intent, and that awareness can be a

factor in the nominating stockholder’s decision making. Plus, including entities in

the definition of Acting in Concert is consistent with the purpose of advance-notice

bylaws. In fact, because entities can own stock under Delaware law, excluding them

from the Acting-in-Concert provision would render that requirement easy to dodge.56

Including entities in the definition is sensible, not unintelligible.

Fourth, Plaintiff argues that the Bylaw is unintelligible because two aspects of

it requires a Proposing Party to identify persons unknown to them.57

Plaintiff first criticizes Parts A through C. Plaintiff argues that because the

definition of Acting in Concert does not require an express agreement, arrangement,

or understanding, it is unclear whether a Proposing Person would be required to

disclose “mere concurrence[s] of self-interest with another stockholder,” such as an

instance where “two stockholders are chatting and discover they both coincidentally

want to elect the same director.”58 Other aspects of Parts A through C, however,

56 “The transfer of stock generally of Delaware corporations is governed by Delaware’s

version of Article 8, Investment Securities, of the Uniform Commercial Code[.]”
2 David A. Drexler, et al., Delaware Corporation Law and Practice § 22.01 (2024).
Article 8 of Delaware’s UCC provides that any “person,” a term which includes
business entities, acquires ownership of a security when they receive delivery. See 6
Del. C. § 8-104(a)(1) (“A person acquires a security . . . under this Article, if . . . the
person is a purchaser to whom a security is delivered[.]”), § 1-201(27) (defining
“person” as “an individual, corporation, business trust, statutory trust, estate, trust,
partnership, limited liability company, association . . . [or] any other legal or
commercial entity[.]”).
57 Pl.’s Answering Br. at 16–27.

58 Id. at 16.

17
eliminate much of Plaintiff’s concern. Due to the knowledge requirement of Part A,

parts A through C are satisfied only if the Proposing Person “knowingly” acts in

concert or toward a common goal with another.59 And as a result of the causation

requirement of Part B, a person is acting in concert with another because in part the

person is aware of the other’s action or intent. These aspects of Parts A through C

therefore presuppose that the nominating stockholder knows the persons it must

identify.

Plaintiff next directs the same criticism—that the Bylaw requires nominating

stockholders to disclose persons unknown to them—toward the daisy chain. This

criticism has some merit, because the knowledge and causation qualifiers of Part A

and B do not apply to the daisy chain. In briefing, Defendants suggest that the

knowledge modifier of Part A in fact applies to the daisy-chain provision, such that

nominating stockholders need only disclose persons known to them.60 But

Defendants’ interpretation is not supported by the plain language of the Bylaw.

Structurally, the daisy-chain provision overlays all aspects of Parts A through C;61

the qualifiers of Parts A through C thus do not limit the daisy chain requirement.

For example, the daisy chain operates as follows: Person A intends to nominate

a director. Person A and Person B are Acting in Concert to advance Person A’s

59 See Bylaws § 1.11.3(c)(i).

60 Defs.’ Reply Br. at 18 (“the Challenged Bylaws require disclosure of persons the

stockholder knows are ‘Acting in Concert’ with the stockholder” (emphasis in
original)).
61 See supra Legal Analysis § II.A.

18
nomination. Person B, unbeknownst to Person A, is also working with Person C to

advance Person A’s nomination. Under the last sentence of the Acting in Concert

definition, Person A is Acting in Concert with Person C. As a result, Person A’s

nomination could be rejected under the Bylaw if Person A fails to disclose the

participation of Person C.62 The definition stretches the possible chain of people

Acting in Concert even further because if Person C Acts in Concert with another third

party, Person D, then Person A, the nominator, would also be Acting in Concert with

Person D. Under this example, a requirement that Person A disclose information

about Persons C and D might seem to make no sense since Person A is not

communicating with Person D (or even Person C).

But what the Bylaw effectively does is impose on any Proposing Person (Person

A) the obligation to ask the people with whom she is Acting in Concert whether they

are acting in concert with anyone else.63 In this way, the Bylaw imposes an

investigative burden on the Proposing Person. A stockholder might rightly take issue

with that requirement as burdensome to the point of unreasonable. But where a

party brings a facial challenge to a bylaw, the court does not assess reasonableness—

62 See Bylaws § 1.11.1(b)(z)(viii) (requiring “a complete written description of any

agreement, arrangement or understanding . . . between or among such Proposing
Person, any of its respective affiliates or associates and any other person Acting in
Concert with any of the foregoing”).
63 See 3/28/25 Hr’g Tr. at 16:1–4 (making this point).

19
that analysis is reserved for as-applied challenges.64 The investigative burden

imposed by the Bylaw is onerous. But it does not render the Bylaw unintelligible.

Plaintiff argues that the Bylaw here “is even more vague and wildly sprawling”

than that struck down in Kellner.65 But that is not the case. The ownership provision

struck as unintelligible in Kellner was a 1,099-word sentence containing 13

subsections that the Supreme Court characterized as imposing “virtually endless

requirements on a stockholder seeking to nominate directors.”66 The Bylaw here is

not on the same level. It is long, broad, and onerous, and there are many reasons

why it is suboptimal.67 But it is not unintelligible.

b. Is Compliance Impossible?

Relying on Versum, Plaintiff redeploys its persons-unknown point to argue

that it is impossible to comply with the Bylaw.68 That is, Plaintiff argues that a

nominating stockholder cannot comply with the daisy-chain provision because it

requires a nominating stockholder to identify persons unknown to it. That argument

64 See Kellner, 320 A.3d at 262–263 (explaining that bylaws are subject to review for

legal compliance (whether the bylaw is valid) and to ensure that they are equitable
(whether or not the bylaw is enforceable), and noting that “[w]hen a validity challenge
is raised . . . the court should undertake an analysis distinct from enhanced scrutiny
review,” which contemplates whether a board adopted a challenged bylaw in response
to a real threat to a corporation’s interest and whether the bylaw was reasonable in
relation to the threat posed).
65 Pl.’s Answering Br. at 11.

66 Kellner, 320 A.3d at 253, 263.

67 See generally Benjamin C. Bates, Rewriting the Rules for Corporate Elections, 100

N.Y.U. L. Rev 635, 692–96 (2025) (describing how overly complex advance-notice
bylaws chill stockholder nominations and decrease board accountability by increasing
the costs of successfully nominating board candidates to challenge incumbents).
68 See Pl.’s Answering Br. at 17–19 (discussing Versum, C.A. No. 2019-0206-JTL).

20
fails for the reasons stated above—a nominating stockholder can investigate whether

persons are acting in concert with others.

Versum does not inform this analysis because it involved an applied challenge

subject to enhanced scrutiny, not a facial challenge under Kellner.69 Framed

generally, enhanced scrutiny requires the court to evaluate “the reasonableness of

the end that the directors chose to pursue, the path that they took to get there, and

the fit between the means and the end.”70 A facial challenge to an advance-notice

bylaw is more limited in scope. A plaintiff cannot attack the facial validity of a bylaw

based on the fit between the means and the end. Nor can a plaintiff prevail on a facial

challenge by showing that, “under some circumstances, a bylaw might conflict with a

statute or operate unlawfully.”71 Rather, the bylaw must be incapable of operating

lawfully in any circumstances. Plaintiff has failed to make that showing here.72

69 Versum involved an applied challenge to a rights plan adopted by Versum to protect

its stock-for-stock merger from an all-cash topping bid. See C.A. No. 2019-0206-JTL,
at 54. The plaintiff filed suit, challenging the plan’s acting-in-concert provision,
which included the same daisy-chain provision found in the Bylaw here. Id. at 52–
53, 56. Versum withdrew the rights plan in response to the plaintiff’s lawsuit, and
the plaintiff’s counsel sought mootness fees. See id. at 57. The fee petition required
the court to address whether the plaintiff’s claim was meritorious under the enhanced
scrutiny standard of Unocal. Id. at 57–59. The court concluded that the plaintiff’s
claim was meritorious under this standard because there was a “misfit between the
pill and the situation.” Id. at 67.
70 See Obeid v. Hogan, 2016 WL 3356851, at *13 (Del. Ch. June 10, 2016).

71 Kellner, 320 A.3d at 258.

72 Plaintiff also relies on Williams throughout briefing, but that case is
distinguishable for the same reason—it too involved an as-applied challenge. See
Williams, 2021 WL 754593, at *5.

21
III. CONCLUSION

Plaintiff has failed to establish that the Bylaw is facially invalid. Count I is

dismissed. Count II for breach of fiduciary duties is premised on Count I and thus

fails. Count II is also dismissed. Defendants’ Motion to Dismiss is granted in full.

22
Better Home
Advance-Notice Bylaw

1.11 Notice of Stockholder Business; Nominations.

1. Annual Meeting of Stockholders.

(a) Nominations of persons for election to
the Board and the proposal of other business to be
considered by the stockholders may be made at an annual
meeting of stockholders only: (i) pursuant to the
Corporation’s notice of such meeting (or any supplement
thereto), (ii) by or at the direction of the Board or any
committee thereof or (iii) by any stockholder of the
Corporation who was a stockholder of record at the time of
giving of the notice provided for in this Section 1.11 (the
“Record Stockholder”), who is entitled to vote at such
meeting and who complies with the notice and other
procedures set forth in this Section 1.11 in all applicable
respects. For the avoidance of doubt, the foregoing clause
(iii) shall be the exclusive means for a stockholder to make
nominations or propose business (other than business
included in the Corporation’s proxy materials pursuant to
Rule 14a-8 under the Securities Exchange Act of 1934, as
amended (such act, and the rules and regulations
promulgated thereunder, the “Exchange Act”)), at an
annual meeting of stockholders, and such stockholder must
fully comply with the notice and other procedures set forth
in this Section 1.11 to make such nominations or propose
business before an annual meeting.

(b) For nominations or other business to be
properly brought before an annual meeting by a Record
Stockholder pursuant to Section 1.11.1(a) of these Bylaws:

(i) the Record Stockholder must
have given timely notice thereof in writing to the Secretary
of the Corporation and provide any updates or supplements
to such notice at the times and in the forms required by this
Section 1.11;

(ii) such other business (other than
the nomination of persons for election to the Board) must
otherwise be a proper matter for stockholder action;

i
(iii) if the Proposing Person (as
defined below) has provided the Corporation with a
Solicitation Notice (as defined below), such Proposing
Person must, in the case of a proposal other than the
nomination of persons for election to the Board, have
delivered a proxy statement and form of proxy to holders of
at least the percentage of the Corporation’s voting shares
required under applicable law to carry any such proposal,
or, in the case of a nomination or nominations, have
delivered a proxy statement and form of proxy to holders of
a percentage of the Corporation’s voting shares reasonably
believed by such Proposing Person to be sufficient to elect
the nominee or nominees proposed to be nominated by such
Record Stockholder, and must, in either case, have
included in such materials the Solicitation Notice; and

(iv) if no Solicitation Notice relating
thereto has been timely provided pursuant to this Section
1.11, the Proposing Person proposing such business or
nomination must not have solicited a number of proxies
sufficient to have required the delivery of such a
Solicitation Notice under this Section 1.11.

To be timely, a Record Stockholder’s notice must be
delivered to the Secretary at the principal executive offices
of the Corporation not later than the close of business on
the ninetieth (90th) day nor earlier than the close of
business on the one hundred and twentieth (120th) day
prior to the first anniversary of the preceding year’s annual
meeting (except in the case of the Corporation’s annual
meeting held in 2022, for which such notice shall be timely
if delivered in the same time period as if such meeting were
a special meeting governed by Section 1.2 of these Bylaws);
provided, however, that in the event that the date of the
annual meeting is more than thirty (30) days before, or
more than sixty (60) days after, such anniversary date,
notice by the Record Stockholder to be timely must be so
delivered (A) no earlier than the close of business on the
one hundred and twentieth (120th) day prior to such
annual meeting and (B) no later than the close of business
on the later of the ninetieth (90th) day prior to such annual
meeting or the close of business on the tenth (10th) day
following the day on which Public Announcement (as
defined below) of the date of such meeting is first made by
the Corporation. In no event shall an adjournment or

ii
postponement of an annual meeting for which notice has
been given commence a new time period (or extend any
time period) for providing the Record Stockholder’s notice.
Such Record Stockholder’s notice shall set forth:

(x) as to each person whom the Record
Stockholder proposes to nominate for election or reelection
as a director:

(i) the name, age, business address
and residence address of such person;

(ii) the principal occupation or
employment of such nominee;

(iii) the class, series and number of
any shares of stock of the Corporation that are beneficially
owned or owned of record by such person or any Associated
Person (as defined in Section 1.11.3(c));

(iv) the date or dates such shares
were acquired and the investment intent of such
acquisition;

(v) all other information relating to
such person that would be required to be disclosed in
solicitations of proxies for election of directors in an
election contest (even if an election contest is not involved),
or would be otherwise required, in each case pursuant to
and in accordance with Section 14(a) (or any successor
provision) under the Exchange Act and the rules and
regulations thereunder (including such person’s written
consent to being named in the proxy statement as a
nominee, to the public disclosure of information regarding
or related to such person provided to the Corporation by
such person or otherwise pursuant to this Section 1.11 and
to serving as a director if elected);

(vi) a statement whether such
person, if elected, intends to tender, promptly following
such person’s election or reelection, an irrevocable
resignation effective upon such person’s failure to receive
the required vote for reelection at any future meeting at
which such person would face reelection and acceptance of
such resignation by the Board, in accordance with the
Corporation’s Corporate Governance Guidelines; and

iii
(vii) whether such person meets the
independence requirements of the stock exchange upon
which the Corporation’s Class A Common Stock is
primarily traded.

(y) as to any other business that the
Record Stockholder proposes to bring before the meeting, a
brief description of the business desired to be brought
before the meeting, the text of the proposal or business
(including the text of any resolutions proposed for
consideration and in the event that such business includes
a proposal to amend the Bylaws, the text of the proposed
amendment), the reasons for conducting such business at
the meeting and any material interest in such business of
such Proposing Person, including any anticipated benefit
to any Proposing Person therefrom; and

(z) as to the Proposing Person giving the
notice:

(i) the current name and address of
such Proposing Person, including, if applicable, their name
and address as they appear on the Corporation’s stock
ledger, if different;

(ii) the class or series and number of
shares of stock of the Corporation that are directly or
indirectly owned of record or beneficially owned by such
Proposing Person, including any shares of any class or
series of the Corporation as to which such Proposing
Person has a right to acquire beneficial ownership at any
time in the future;

(iii) whether and the extent to which
any derivative interest in the Corporation’s equity
securities (including without limitation any option,
warrant, convertible security, stock appreciation right, or
similar right with an exercise or conversion privilege or a
settlement payment or mechanism at a price related to any
class or series of shares of the Corporation or with a value
derived in whole or in part from the value of any class or
series of shares of the Corporation, whether or not such
instrument or right shall be subject to settlement in the
underlying class or series of shares of the Corporation or
otherwise, and any cash-settled equity swap, total return

iv
swap, synthetic equity position or similar derivative
arrangement, as well as any rights to dividends on the
shares of any class or series of shares of the Corporation
that are separated or separable from the underlying shares
of the Corporation) or any short interest in any security of
the Corporation (for purposes of this Bylaw a person shall
be deemed to have a short interest in a security if such
person directly or indirectly, through any contract,
arrangement, understanding, relationship or otherwise,
has the opportunity to profit or share in any profit derived
from any increase or decrease in the value of the subject
security, including through performance-related fees) is
held directly or indirectly by or for the benefit of such
Proposing Person, including without limitation whether
and the extent to which any ongoing hedging or other
transaction or series of transactions has been entered into
by or on behalf of, or any other agreement, arrangement or
understanding (including without limitation any short
position or any borrowing or lending of shares) has been
made, the effect or intent of which is to mitigate loss to or
manage risk or benefit of share price changes for, or to
increase or decrease the voting power of, such Proposing
Person with respect to any share of stock of the
Corporation;

(iv) any other material relationship
between such Proposing Person, on the one hand, and the
Corporation, any affiliate of the Corporation or any
principal competitor of the Corporation, on the other hand;

(v) any direct or indirect material
interest in any material contract or agreement with the
Corporation, any affiliate of the Corporation or any
principal competitor of the Corporation (including, in any
such case, any employment agreement, collective
bargaining agreement or consulting agreement);

(vi) any other information relating
to such Proposing Person that would be required to be
disclosed in a proxy statement or other filing required to be
made in connection with solicitations of proxies or consents
by such Proposing Person in support of the business
proposed to be brought before the meeting pursuant to
Section 14(a) (or any successor provision) under the
Exchange Act and the rules and regulations thereunder

v
(the disclosures to be made pursuant to the foregoing
clauses (iv) through (vi) are referred to as “Disclosable
Interests”). For purposes hereof “Disclosable Interests”
shall not include any information with respect to the
ordinary course business activities of any broker, dealer,
commercial bank, trust company or other nominee who is
a Proposing Person solely as a result of being the
stockholder directed to prepare and submit the notice
required by these Bylaws on behalf of a beneficial owner;

(vii) such Proposing Person’s written
consent to the public disclosure of information provided to
the Corporation pursuant to this Section 1.11;

(viii) a complete written description of
any agreement, arrangement or understanding (whether
oral or in writing) (including any knowledge that another
person or entity is Acting in Concert (as defined in Section
1.11.3(c) of these Bylaws) with such Proposing Person)
between or among such Proposing Person, any of its
respective affiliates or associates and any other person
Acting in Concert with any of the foregoing persons;

(ix) as to each person whom such
Proposing Person proposes to nominate for election or
reelection as a director, any agreement, arrangement or
understanding of such person with any other person or
entity other than the Corporation with respect to any direct
or indirect compensation, reimbursement or
indemnification in connection with service or action as a
director known to such Proposing Person after reasonable
inquiry;

(x) a representation that the Record
Stockholder is a holder of record of stock of the Corporation
entitled to vote at such meeting and intends to appear in
person or by proxy at the meeting to propose such business
or nomination;

(xi) a representation whether such
Proposing Person intends (or is part of a group that
intends) to deliver a proxy statement or form of proxy to
holders of, in the case of a proposal, at least the percentage
of the Corporation’s voting shares required under
applicable law to carry the proposal or, in the case of a

vi
nomination or nominations, a sufficient number of holders
of the Corporation’s voting shares to elect such nominee or
nominees (an affirmative statement of such intent being a
“Solicitation Notice”); and

(xii) any proxy, contract,
arrangement, or relationship pursuant to which the
Proposing Person has a right to vote, directly or indirectly,
any shares of any security of the Corporation.

The Corporation may also require any proposed
nominee to furnish such other information, including
completion of the Corporation’s directors questionnaire, as
it may reasonably require to determine whether the
nominee would be considered “independent” as a director
or as a member of the audit committee of the Board under
the various rules and standards applicable to the
Corporation.

A stockholder providing written notice required by
this Section 1.11 will update and supplement such notice
in writing, if necessary, so that the information provided or
required to be provided in such notice is true and correct in
all material respects as of (i) the record date for the meeting
and (ii) the close of business on the fifth (5th) business day
prior to the meeting and, in the event of any adjournment
or postponement thereof, the close of business on the fifth
(5th) business day prior to such adjourned or postponed
meeting. In the case of an update and supplement
pursuant to clause (i) of the foregoing sentence, such
update and supplement will be received by the Secretary of
the Corporation at the principal executive office of the
Corporation not later than five (5) business days after the
record date for the meeting, and in the case of an update
and supplement pursuant to clause (ii) of the foregoing
sentence, such update and supplement will be received by
the Secretary of the Corporation at the principal executive
office of the Corporation not later than two (2) business
days prior to the date for the meeting, and, in the event of
any adjournment or postponement thereof, two (2)
business days prior to such adjourned or postponed
meeting.

(c) Notwithstanding anything in the
second sentence of Section 1.11.1(b) of these Bylaws to the

vii
contrary, in the event that the number of directors to be
elected to the Board is increased and there is no Public
Announcement by the Corporation naming all of the
nominees for director or specifying the size of the increased
Board at least ninety (90) days prior to the first
anniversary of the preceding year’s annual meeting (or, if
the annual meeting is held more than thirty (30) days
before or sixty (60) days after such anniversary date, at
least ninety (90) days prior to such annual meeting), a
stockholder’s notice required by this Section 1.11 shall also
be considered timely, but only with respect to nominees for
any new positions created by such increase, if it shall be
delivered to the Secretary of the Corporation at the
principal executive office of the Corporation no later than
the close of business on the tenth (10th) day following the
day on which such Public Announcement is first made by
the Corporation.

2. Special Meetings of Stockholders.

(a) Any stockholder or stockholders
seeking to call a special meeting pursuant to the Certificate
of Incorporation and Section 1.2 of these Bylaws shall
provide information comparable to that required by this
Section 1.11, to the extent applicable, in any request made
pursuant thereto. From the date of delivery of the
stockholder notice, such stockholder must give written
notice to the Secretary of the Corporation at the principal
executive offices of the Corporation of any change in the
information provided pursuant to this Section 1.11, within
two (2) business days thereof (each an “Update”), provided
that any such Update shall be delivered by such
stockholder at least two business days prior to the closing
of the polls at the meeting.

3. General.

(a) Only such persons who are nominated
in accordance with the procedures set forth in this Section
1.11 shall be eligible to be elected at a meeting of
stockholders and serve as directors and only such business
shall be conducted at a meeting of stockholders as shall
have been brought before the meeting in accordance with
the procedures set forth in this Section 1.11. Except as
otherwise provided by law or these Bylaws, the chairperson

viii
of the meeting shall have the power and duty to determine
whether a nomination or any other business proposed to be
brought before the meeting was made or proposed, as the
case may be, in accordance with the procedures set forth in
this Section 1.11 and, if any proposed nomination or
business is not in compliance herewith, to declare that such
defective proposal or nomination shall be disregarded.
Notwithstanding the foregoing provisions of this Section
1.11, unless otherwise required by law, if the stockholder
(or a Qualified Representative of the stockholder (as
defined below)) does not appear at the annual or special
meeting of stockholders of the Corporation to present a
nomination or proposed business, such nomination shall be
disregarded and such proposed business shall not be
transacted, notwithstanding that proxies in respect of such
vote may have been received by the Corporation.

(b) Notwithstanding the foregoing
provisions of this Section 1.11, a stockholder shall also
comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect
to the matters set forth herein. Nothing in this Section 1.11
shall be deemed to affect any rights of (i) stockholders to
request inclusion of proposals in the Corporation’s proxy
statement pursuant to Rule 14a-8 under the Exchange Act
or (ii) the holders of any series of Preferred Stock to elect
directors pursuant to any applicable provisions of the
Certificate of Incorporation.

(c) For purposes of this Section 1.11 the
following definitions shall apply:

(i) a person shall be deemed to be
“Acting in Concert” with another person if such person
knowingly acts (whether or not pursuant to an express
agreement, arrangement or understanding) in concert
with, or toward a common goal relating to the
management, governance or control of the Corporation in
substantial parallel with, such other person where (1) each
person is conscious of the other person’s conduct or intent
and this awareness is an element in their decision-making
processes and (2) at least one additional factor suggests
that such persons intend to act in concert or in substantial
parallel, which such additional factors may include,
without limitation, exchanging information (whether

ix
publicly or privately), attending meetings, conducting
discussions or making or soliciting invitations to act in
concert or in substantial parallel; provided, that a person
shall not be deemed to be Acting in Concert with any other
person solely as a result of the solicitation or receipt of
revocable proxies or consents from such other person in
response to a solicitation made pursuant to, and in
accordance with, Section 14(a) (or any successor provision)
of the Exchange Act by way of a proxy or consent
solicitation statement filed on Schedule 14A. A person
Acting in Concert with another person shall be deemed to
be Acting in Concert with any third party who is also
Acting in Concert with such other person;

(ii) “Associated Person” shall
mean with respect to any subject stockholder or other
person (including any proposed nominee) (1) any person
directly or indirectly controlling, controlled by or under
common control with such stockholder or other person, (2)
any beneficial owner of shares of stock of the Corporation
owned of record or beneficially by such stockholder or other
person, (3) any associate (as defined in Rule 405 under the
Securities Act of 1933, as amended (the “Securities Act”)),
of such stockholder or other person, and (4) any person
directly or indirectly controlling, controlled by or under
common control or Acting in Concert with any such
Associated Person;

(iii) “Proposing Person” shall mean
(1) the stockholder providing the notice of business
proposed to be brought before an annual meeting or
nomination of persons for election to the Board at a
stockholder meeting, (2) the beneficial owner or beneficial
owners, if different, on whose behalf the notice of business
proposed to be brought before the annual meeting or
nomination of persons for election to the Board at a
stockholder meeting is made, and (3) any Associated
Person on whose behalf the notice of business proposed to
be brought before the annual meeting or nomination of
persons for election to the Board at a stockholder meeting
is made;

(iv) “Public Announcement” shall
mean disclosure in a press release reported by a national
news service or in a document publicly filed by the

x
Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act;
and

(v) to be considered a “Qualified
Representative” of a stockholder, a person must be a duly
authorized officer, manager or partner of such stockholder
or must be authorized by a writing executed by such
stockholder or an electronic transmission delivered by such
stockholder to act for such stockholder as a proxy at the
meeting of stockholders and such person must produce
such writing or electronic transmission, or a reliable
reproduction thereof, at the annual meeting; provided,
however, that if the stockholder is (1) a general or limited
partnership, any general partner or person who functions
as a general partner of the general or limited partnership
or who controls the general or limited partnership shall be
deemed a Qualified Representative, (2) a corporation or a
limited liability company, any officer or person who
functions as the substantial equivalent of an officer of the
corporation or limited liability company or any officer,
director, general partner or person who functions as an
officer, director or general partner of any entity ultimately
in control of the corporation or limited liability company
shall be deemed a Qualified Representative or (z) a trust,
any trustee of such trust shall be deemed a Qualified
Representative. The Secretary of the Corporation, or any
other person who shall be appointed to serve as the
secretary of the meeting, may require, on behalf of the
Corporation, reasonable and appropriate documentation to
verify the status of a person purporting to be a “Qualified
Representative” for purposes hereof.

xi