AMENDED AND RESTATED BYLAWS
OF
APPHARVEST, INC.
(A DELAWARE PUBLIC BENEFIT CORPORATION)
Article
I
OFFICES
Section 1. Registered Office. The registered office of the corporation in the State of Delaware shall be as set forth in the certificate
of incorporation of the corporation (the “Certificate of Incorporation”).
Section 2. Other Offices. The corporation shall also have and maintain an office or principal place of business at such place as
may be fixed by the Board of Directors of the corporation (the “Board of Directors”), and may also have
offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine
or as may be necessary or convenient to the business of the corporation.
Article
II
CORPORATE
SEAL
Section 3. Corporate Seal. The Board of Directors may adopt a corporate seal. If adopted, the corporate seal shall consist of a
die bearing the name of the corporation and the inscription, “Corporate Seal-Delaware.” Said seal may be used by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
Article
III
STOCKHOLDERS’ MEETINGS
Section 4. Place of Meetings. Meetings of the stockholders of the corporation may be held at such place (if any), either within
or without the State of Delaware, as may be determined from time to time by the Board of Directors. The Board of Directors may,
in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote
communication as provided under the Delaware General Corporation Law (“DGCL”). For the avoidance of doubt,
the Board of Directors may, in its sole discretion, determine that a meeting of stockholders of the corporation may be held both
in a place and by means of remote communication.
Section 5. Annual Meeting.
(a) The annual meeting of the stockholders of the corporation, for the purpose of election of directors and for such other
business as may properly come before it, shall be held at such place, if any, and on such date and at such time as shall be designated
from time to time by the Board of Directors and stated in the corporation’s notice of meeting of stockholders. Nominations
of persons for election to the Board of Directors and proposals of business to be considered by the stockholders may be made at
an annual meeting of stockholders: (i) pursuant to the corporation’s notice of meeting of stockholders given by or at the
direction of the Board of Directors; (ii) brought specifically by or at the direction of the Board of Directors or a duly authorized
committee thereof; or (iii) by any stockholder of the corporation who was a stockholder of record or beneficial owner at the time
of giving the stockholder’s notice provided for in Section 5(b) below, who is entitled to vote at the meeting and who complied
with the notice procedures set forth in Section 5. For the avoidance of doubt, clause (iii) above shall be the exclusive means
for a stockholder to make nominations and submit other business (other than matters properly included in the corporation’s
notice of meeting of stockholders and proxy statement under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the
“1934 Act”), and the rules and regulations thereunder before an annual meeting of stockholders).
(b) At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder
action under Delaware law and as shall have been properly brought before the meeting in accordance with Section 5(a) and the procedures
below.
(i) For nominations for the election to the Board of Directors to be properly brought before an annual meeting by a stockholder
pursuant to clause (iii) of Section 5(a), the stockholder must deliver written notice to the Secretary at the principal executive
offices of the corporation on a timely basis as set forth in Section 5(b)(iii) and must update and supplement such written notice
on a timely basis as set forth in Section 5(c). Such stockholder’s notice shall set forth: (A) as to each nominee such stockholder
proposes to nominate at the meeting: (1) the name, age, business address and residence address of such nominee; (2) the principal
occupation or employment of such nominee; (3) the class or series and number of shares of each class or series of capital stock
of the corporation that are owned beneficially and of record by such nominee; (4) the date or dates on which such shares were acquired
and the investment intent of such acquisition; (5) a statement whether such nominee, if elected, intends to tender, promptly following
such person’s failure to receive the required vote for election or re-election at the next meeting at which such person would
face election or re-election, an irrevocable resignation effective upon acceptance of such resignation by the Board of Directors;
and (6) such other information concerning such nominee as would be required to be disclosed in a proxy statement soliciting proxies
for the election of such nominee as a director in an election contest (even if an election contest is not involved), or that is
otherwise required to be disclosed pursuant to Section 14 of the 1934 Act and the rules and regulations promulgated thereunder
(including such person’s written consent to being named in the corporation’s proxy statement and associated proxy card
as a nominee of the stockholder and to serving as a director if elected); and (B) the information required by Section 5(b)(iv).
The corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the
eligibility of such proposed nominee to serve (i) as an independent director (as such term is used in any applicable stock exchange
listing requirements or applicable law) of the corporation or (ii) on any committee or sub-committee of the Board of Directors
under any applicable stock exchange listing requirements or applicable law, and that could be material to a reasonable stockholder’s
understanding of the independence, or lack thereof, of such proposed nominee.
(ii) Other than proposals sought to be included in the corporation’s proxy materials pursuant to Rule 14a-8 under the
1934 Act, for business other than nominations for the election to the Board of Directors to be properly brought before an annual
meeting by a stockholder pursuant to clause (iii) of Section 5(a), the stockholder must deliver written notice to the Secretary
at the principal executive offices of the corporation on a timely basis as set forth in Section 5(b)(iii), and must update and
supplement such written notice on a timely basis as set forth in Section 5(c). Such stockholder’s notice shall set forth:
(A) as to each matter such 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 of the corporation (the “Bylaws”),
the language of the proposed amendment), the reasons for conducting such business at the meeting, and any material interest (including
any anticipated benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of
the corporation’s capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in
such business of any Proponent; and (B) the information required by Section 5(b)(iv).
(iii) To be timely, the written notice required by Section 5(b)(i) or 5(b)(ii) must be received by 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 twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting;
provided, however, that, subject to the last sentence of this Section 5(b)(iii), in the event that no annual meeting was
held during the preceding year or the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by
more than thirty (30) days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be
timely must be so received (A) not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual
meeting and (B) not later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or,
if later than the ninetieth (90th) day prior to such annual meeting, the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made. In no event shall an adjournment or a postponement of an annual meeting for which notice
has been given, or the public announcement thereof has been made, commence a new time period (or extend any time period) for the
giving of a stockholder’s notice as described above.
(iv) The written notice required by Section 5(b)(i) or 5(b)(ii) shall also set forth, as of the date of the notice and as
to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (each,
a “Proponent” and collectively, the “Proponents”): (A) the name and address
of each Proponent, as they appear on the corporation’s books; (B) the class or series and number of shares of each class
of capital stock of the corporation that are owned of record and beneficially by each Proponent; (C) a description of any agreement,
arrangement or understanding (whether oral or in writing) with respect to such nomination or proposal between or among any Proponent
and any of its affiliates or associates, and any others (including their names) acting in concert, or otherwise under the agreement,
arrangement or understanding, with any of the foregoing; (D) a representation that the Proponents are holders of record or beneficial
owners, as the case may be, of shares of the corporation entitled to vote at the meeting and intend to appear in person or by proxy
at the meeting to nominate the person or persons specified in the notice (with respect to a notice under Section 5(b)(i)) or to
propose the business that is specified in the notice (with respect to a notice under Section 5(b)(ii)); (E) a representation as
to whether the Proponents intend to deliver a proxy statement and form of proxy to holders of a sufficient number of holders of
the corporation’s voting shares to elect such nominee or nominees (with respect to a notice under Section 5(b)(i)) or to
carry such proposal (with respect to a notice under Section 5(b)(ii)); (F) to the extent known by any Proponent, the name and address
of any other stockholder supporting the proposal on the date of such stockholder’s notice; and (G) a description of all Derivative
Transactions (as defined below) by each Proponent during the previous twelve (12) month period, including the date of the transactions
and the class, series and number of securities involved in, and the material economic terms of, such Derivative Transactions.
(c) A stockholder providing the written notice required by Section 5(b)(i) or 5(b)(ii) shall 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 date that is five (5) business days prior to the
meeting and, in the event of any adjournment or postponement thereof, five (5) business days prior to such adjourned or postponed
meeting. In the case of an update and supplement pursuant to clause (i) of this Section 5(c), such update and supplement shall
be received by the Secretary at the principal executive offices of the corporation not later than five (5) business days after
the record date for the meeting. In the case of an update and supplement pursuant to clause (ii) of this Section 5(c), such update
and supplement shall be received by the Secretary at the principal executive offices 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.
(d) Notwithstanding anything herein to the contrary, in the event that the number of directors to be elected to the Board
of Directors of the corporation at the annual meeting is increased effective after the time period for which nominations would
otherwise be due under Section 5(b)(iii) and there is no public announcement by the corporation naming the nominees for the additional
directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s
notice required by this Section 5 shall also be considered timely, but only with respect to nominees for the additional directorships,
if it shall be delivered to the Secretary at the principal executive offices of the corporation not later than the close of business
on the tenth (10th) day following the day on which such public announcement is first made by the corporation.
(e) A person shall not be eligible for election or re-election as a director at the annual meeting unless the person is
nominated either in accordance with clause (ii) or clause (iii) of Section 5(a). Except as otherwise required by law, the chairperson
of the annual meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before
the meeting was made, or proposed, as the case may be, in accordance with the procedures set forth in these Bylaws and, if any
proposed nomination or business is not in compliance with these Bylaws, or the Proponent does not act in accordance with the representations
in Sections 5(b)(iv)(D) and 5(b)(iv)(E), to declare that such proposal or nomination shall not be presented for stockholder action
at the meeting and shall be disregarded, notwithstanding that proxies in respect of such nomination or such business may have been
solicited or received.
(f) Notwithstanding the foregoing provisions of this Section 5, in order to include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a stockholders’ meeting, a stockholder must also comply with all applicable
requirements of the 1934 Act and the rules and regulations thereunder. Nothing in these Bylaws shall be deemed to affect any rights
of stockholders to request inclusion of proposals in the corporation’s proxy statement pursuant to Rule 14a-8 under the 1934
Act; provided, however, that any references in these Bylaws to the 1934 Act or the rules and regulations thereunder are
not intended to and shall not limit the requirements applicable to proposals and/or nominations to be considered pursuant to Section
5(a).
(g) For purposes of Sections 5 and 6,
(i) “affiliates” and “associates” shall have the meanings set forth
in Rule 405 under the Securities Act of 1933, as amended (the “1933 Act”);
(ii) “Derivative Transaction” means any agreement, arrangement, interest or understanding entered
into by, or on behalf or for the benefit of, any Proponent or any of its affiliates or associates, whether record or beneficial:
(A) the value of which is derived in whole or in part from the value of any class or series of shares or other securities of the
corporation; (B) that otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change
in the value of securities of the corporation; (C) the effect or intent of which is to mitigate loss, manage risk or benefit of
security value or price changes; or (D) that provides the right to vote or increase or decrease the voting power of, such Proponent,
or any of its affiliates or associates, with respect to any securities of the corporation, which agreement, arrangement, interest
or understanding may include, without limitation, any option, warrant, debt position, note, bond, convertible security, swap, stock
appreciation right, short position, profit interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement
to borrow or lend shares (whether or not subject to payment, settlement, exercise or conversion in any such class or series), and
any proportionate interest of such Proponent in the securities of the corporation held by any general or limited partnership, or
any limited liability company, of which such Proponent is, directly or indirectly, a general partner or managing member; and
(iii) “public announcement” shall mean disclosure in a press release reported by the Dow Jones Newswires,
Associated Press or comparable national news service or in a document publicly filed by the corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act or by such other means reasonably designed to inform the
public or security holders in general of such information including, without limitation, posting on the corporation’s investor
relations website.
Section 6. Special Meetings.
(a) Special meetings of the stockholders of the corporation may be called, for any purpose as is a proper matter for stockholder
action under Delaware law, by (i) the Chairperson of the Board of Directors, (ii) the Chief Executive Officer, or (iii) the Board
of Directors pursuant to a resolution adopted by the Board of Directors.
(b) For a special meeting called pursuant to Section 6(a), the person(s) calling the meeting shall determine the time and
place, if any, of the meeting; provided, however, that only the Board of Directors or a duly authorized committee thereof may authorize
a meeting solely by means of remote communication. Upon determination of the date, time and place, if any, of the meeting, the
Secretary shall cause a notice of meeting to be given to the stockholders entitled to vote, in accordance with the provisions of
Section 7. No business may be transacted at a special meeting otherwise than as specified in the notice of meeting.
(c) Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected (i) by or at the direction of the Board of Directors or a duly authorized committee thereof or (ii)
by any stockholder of the corporation who is a stockholder of record or beneficial owner at the time of giving notice provided
for in this paragraph, who is entitled to vote at the meeting and who delivers written notice to the Secretary of the corporation
setting forth the information required by Section 5(b)(i) and the information required by Section 5(b)(iv). In the event the corporation
calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder
of record or beneficial owner may nominate a person or persons (as the case may be), for election to such position(s) as specified
in the corporation’s notice of meeting, if written notice setting forth the information required by Section 5(b)(i) and the
information required by Section 5(b)(iv) shall be received by the Secretary at the principal executive offices of the corporation
not later than the close of business on the later of the ninetieth (90th) day prior to such meeting or the tenth (10th) day following
the day on which the corporation first makes a public announcement of the date of the special meeting at which directors are to
be elected. The stockholder shall also update and supplement such information as required under Section 5(c). In no event shall
an adjournment or a postponement of a special meeting for which notice has been given, or the public announcement thereof has been
made, commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.
(d) A person shall not be eligible for election or re-election as a director at the special meeting unless the person is
nominated either in accordance with clause (i) or clause (ii) of Section 6(c). Except as otherwise required by law, the chairperson
of the special meeting shall have the power and duty to determine whether a nomination was made in accordance with the procedures
set forth in these Bylaws and, if any nomination or business is not in compliance with these Bylaws, to declare that such nomination
shall not be presented for stockholder action at the meeting and shall be disregarded, notwithstanding that proxies in respect
of such nomination may have been solicited or received.
(e) Notwithstanding the foregoing provisions of this Section 6, a stockholder must also comply with all applicable requirements
of the 1934 Act and the rules and regulations thereunder with respect to matters set forth in this Section 6. Nothing in these
Bylaws shall be deemed to affect any rights of stockholders to request inclusion of proposals in the corporation’s proxy
statement pursuant to Rule 14a-8 under the 1934 Act; provided, however, that any references in these Bylaws to the 1934
Act or the rules and regulations thereunder are not intended to and shall not limit the requirements applicable to nominations
for the election to the Board of Directors or proposals of other businesses to be considered pursuant to Section 6(c).
Section 7. Notice of Meetings. Except as otherwise provided by law, notice, given in writing or by electronic transmission, of
each meeting of stockholders shall be given not fewer than ten (10) nor more than sixty (60) days before the date of the meeting
to each stockholder entitled to vote at such meeting, such notice to specify the place, if any, date and hour, in the case of special
meetings, the purpose or purposes of the meeting, the record date for determining the stockholders entitled to notice of the meeting,
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 any such meeting. If mailed, notice is given when deposited in the United States mail, postage prepaid, directed to the
stockholder at such stockholder’s mailing address as it appears on the records of the corporation. If delivered by courier
service, notice is given at the earlier of when the notice is received or left at such stockholder’s address as it appears
on the records of the corporation. If sent via electronic transmission, notice is given when directed to such stockholder’s
electronic mail address as it appears on the records of the corporation unless the stockholder has notified the corporation in
writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice is prohibited by Section
232(e) of the DGCL. Notice of the time, place, if any, and purpose of any meeting of stockholders (to the extent required) may
be waived in writing, signed by the person entitled to notice thereof or by electronic transmission by such person, either before
or after such meeting, and will be waived by any stockholder by his or her attendance thereat in person, by remote communication,
if applicable, or by proxy, except when the stockholder attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Any stockholder so waiving
notice of such meeting shall be bound by the proceedings of any such meeting in all respects as if due notice thereof had been
given.
Section 8. Quorum; Voting. At all meetings of stockholders, except where otherwise provided by statute or by the Certificate of
Incorporation, or by these Bylaws, the presence, in person, by remote communication, if applicable, or by proxy duly authorized,
of the holders of a majority of the voting power of the outstanding shares of stock entitled to vote at the meeting shall constitute
a quorum for the transaction of business. In the absence of a quorum, any meeting of stockholders may be adjourned, from time to
time, either by the chairperson of the meeting or by vote of the holders of a majority of the voting power of the shares represented
thereat and entitled to vote thereon, but no other business shall be transacted at such meeting. The stockholders present at a
duly called or convened meeting, at which a quorum is present, may continue to transact business until adjournment, notwithstanding
the withdrawal of enough stockholders to leave less than a quorum. Except as otherwise provided by statute or by applicable stock
exchange rules, or by the Certificate of Incorporation or these Bylaws, in all matters other than the election of directors, the
affirmative vote of the holders of a majority of the voting power of the shares present in person, by remote communication, if
applicable, or represented by proxy duly authorized at the meeting and entitled to vote generally on the subject matter shall be
the act of the stockholders. Except as otherwise provided by statute, the Certificate of Incorporation or these Bylaws, directors
shall be elected by a plurality of the votes of the shares present in person, by remote communication, if applicable, or represented
by proxy duly authorized at the meeting and entitled to vote generally on the election of directors. Where a separate vote by a
class or classes or series is required, except where otherwise provided by statute, by applicable stock exchange rules or by the
Certificate of Incorporation or these Bylaws, a majority of the voting power of the outstanding shares of such class or classes
or series, present in person, by remote communication, if applicable, or represented by proxy duly authorized, shall constitute
a quorum entitled to take action with respect to that vote on that matter. Except where otherwise provided by statute, by applicable
stock exchange rules or by the Certificate of Incorporation or these Bylaws, the affirmative vote of the holders of a majority
(plurality, in the case of the election of directors) of voting power of such class or classes or series present in person, by
remote communication, if applicable, or represented by proxy at the meeting shall be the act of such class or classes or series.
Section 9. Adjournment and Notice of Adjourned Meetings. Any meeting of stockholders, whether annual or special, may be adjourned
from time to time either by the person(s) who called the meeting or the chairperson of the meeting, or by the vote of the holders
of a majority of the voting power of the shares present in person, by remote communication, if applicable, or represented by proxy
duly authorized at the meeting and entitled to vote thereon. When a meeting is adjourned to another time or place, if any, notice
need not be given of the adjourned meeting if the time and place, if any, and 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 that might have been transacted
at the original meeting. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given
to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of
stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix as the record date for determining
stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders
entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record as of the
record date so fixed for notice of such adjourned meeting.
Section 10. Voting Rights. For the purpose of determining those stockholders entitled to vote at any meeting of the stockholders,
except as otherwise provided by law, only persons in whose names shares stand on the stock records of the corporation on the record
date shall be entitled to vote at any meeting of stockholders. Every person entitled to vote shall have the right to do so either
in person, by remote communication, if applicable, or by an agent or agents authorized by a proxy granted in accordance with Delaware
law. An agent so appointed need not be a stockholder. No proxy shall be voted or acted upon after three (3) years from its date
of creation unless the proxy provides for a longer period. A 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 stockholder may revoke
any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the corporation
a revocation of the proxy or a new proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot.
Section 11. Joint Owners of Stock. If shares or other securities having voting power stand of record in the names of two (2) or
more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety, or otherwise,
or if two (2) or more persons have the same fiduciary relationship respecting the same shares, unless the Secretary is given written
notice to the contrary and is furnished with a copy of the instrument or order appointing them or creating the relationship wherein
it is so provided, their acts with respect to voting shall have the following effect: (a) if only one (1) votes, his or her act
binds all; (b) if more than one (1) votes, the act of the majority so voting binds all; and (c) if more than one (1) votes, but
the vote is evenly split on any particular matter, each faction may vote the securities in question proportionally, or any person
voting the shares, or a beneficiary, may apply to the Delaware Court of Chancery for relief as provided in DGCL Section 217(b).
If the instrument filed with the Secretary shows that any such tenancy is held in unequal interests, a majority or even-split for
the purpose of subsection (c) shall be a majority or even-split in interest.
Section 12. List of Stockholders. The corporation shall prepare, at least ten (10) days before every meeting of stockholders, a
complete list of the stockholders of record entitled to vote at said meeting, arranged in alphabetical order, showing the address
of each stockholder and the number and class 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 ten (10) days prior to the meeting,
(a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided
with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the corporation. 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. The list shall be open to examination
of any stockholder during the time of the meeting as provided by law.
Section 13. Action without Meeting. Unless otherwise provided in the Certificate of Incorporation, no action shall be taken by the
stockholders of the corporation except at an annual or a special meeting of the stockholders called in accordance with these Bylaws,
and no action of the stockholders of the corporation may be taken by the stockholders by written consent or electronic transmission.
Section 14. Organization.
(a) At every meeting of stockholders, the Chairperson of the Board of Directors, or, if a chairperson has not been appointed,
is absent or refuses to act, the Chief Executive Officer, or, if no Chief Executive Officer is then serving, is absent or refuses
to act, the President, or, if the President is absent or refuses to act, a chairperson of the meeting designated by the Board of
Directors, or, if the Board of Directors does not designate such chairperson, a chairperson chosen by a majority of the voting
power of the stockholders entitled to vote, present in person or by proxy duly authorized, shall act as chairperson. The Chairperson
of the Board may appoint the Chief Executive Officer as chairperson of the meeting. The Secretary, or, in his or her absence, an
Assistant Secretary or other officer, director or other person directed to do so by the chairperson of the meeting, shall act as
secretary of the meeting.
(b) The Board of Directors of the corporation shall be entitled to make such rules or regulations for the conduct of meetings
of stockholders as it shall deem necessary, appropriate or convenient. Subject to such rules and regulations of the Board of Directors,
if any, the chairperson of the meeting shall have the right and authority to convene and (for any or no reason) to recess and/or
adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairperson,
are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing an
agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those
present, limitations on participation in such meeting to stockholders of record of the corporation and their duly authorized and
constituted proxies and such other persons as the chairperson shall permit, restrictions on entry to the meeting after the time
fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants and regulation of
the opening and closing of the polls for balloting on matters which are to be voted on by ballot. The date and time of the opening
and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.
Unless and to the extent determined by the Board of Directors or the chairperson of the meeting, meetings of stockholders shall
not be required to be held in accordance with rules of parliamentary procedure.
(c) The corporation shall, in advance of any meeting of stockholders,
appoint one (1) or more inspectors to act at the meeting and make a written report thereof. The corporation may designate one (1)
or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act
at a meeting of stockholders, the chairperson of the meeting shall appoint one (1) or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the
duties of inspector with strict impartiality and according to the best of such inspector’s ability. The
inspectors shall: (1) ascertain the number of shares outstanding and the voting power of each; (2) determine the shares represented
at a meeting and the validity of proxies and ballots; (3) count all votes and ballots; (4) determine and retain for a reasonable
period a record of the disposition of any challenges made to any determination by the inspectors; and (5) certify their determination
of the number of shares represented at the meeting, and their count of all votes and ballots. The
inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors.
In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies,
any envelopes submitted with those proxies, any information provided in accordance with Sections 211(e)
or 212(c)(2) of the DGCL, or any information provided pursuant to Sections 211(a)(2)b.(i)
or (iii) of the DGCL, ballots and the regular books and records of the corporation, except that the inspectors may consider other
reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their
nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to cast or
more votes than the stockholder holds of record. If the inspectors consider other reliable information for the limited purpose
permitted herein, the inspectors at the time they make their certification pursuant to Section 231(b)(5) of the DGCL shall specify
the precise information considered by them including the person or persons from whom they obtained the information, when the information
was obtained, the means by which the information was obtained and the basis for the inspectors’ belief that such information
is accurate and reliable.
Article
IV
DIRECTORS
Section 15. Number and Term of Office. The authorized number of directors of the corporation shall be fixed exclusively from time
to time by a resolution adopted by the majority of the Board of Directors. Directors need not be stockholders unless so required
by the Certificate of Incorporation. If for any cause, the directors shall not have been elected at an annual meeting, they may
be elected as soon thereafter as convenient at a special meeting of the stockholders called for that purpose in the manner provided
in these Bylaws, or such vacancies may be filled in accordance with Section 18 herein.
Section 16. Powers. The business and affairs of the corporation shall be managed by or under the direction of the Board of Directors,
except as may be otherwise provided by statute or by the Certificate of Incorporation.
Section 17. Classes of Directors. The directors shall be divided into classes as and to the extent provided in the Certificate of
Incorporation, except as otherwise required by applicable law.
Section 18. Vacancies. Vacancies on the Board of Directors shall be filled as provided in the Certificate of Incorporation, except
as otherwise required by applicable law.
Section 19. Resignation. Any director may resign at any time by delivering his or her notice in writing or by electronic transmission
to the Secretary, such resignation to specify whether it will be effective at a particular time. If no such specification is made,
the resignation shall be effective at the time of delivery of the resignation to the Secretary.
Section 20. Removal. Subject to the rights of holders of any series of Preferred Stock (as defined in the Certificate of Incorporation)
to elect additional directors or remove such directors under specified circumstances, neither the Board of Directors nor any individual
director may be removed except in the manner specified in Section 141(k) of the DGCL.
Section 21. Meetings.
(a) Regular Meetings. Unless otherwise restricted by the Certificate of Incorporation, regular meetings of the Board of
Directors may be held at any time or date and at any place, if any, within or without the State of Delaware which has been designated
by the Board of Directors and publicized among all directors, either orally or in writing, by telephone, including a voice-messaging
system or other system designed to record and communicate messages, facsimile, telegraph or telex, or by electronic mail or other
electronic means. No further notice shall be required for regular meetings of the Board of Directors.
(b) Special Meetings. Unless otherwise restricted by the Certificate of Incorporation, special meetings of the Board of
Directors may be held at any date, time and place, if any, within or without the State of Delaware whenever called by the Chairperson
of the Board, the Chief Executive Officer or the Board of Directors.
(c) Meetings by Electronic Communications Equipment. Any member of the Board of Directors, or of any committee thereof,
may participate in a meeting by means of conference telephone or other communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting by such means shall constitute presence in person at such meeting.
(d) Notice of Special Meetings. Notice of the time and place of all special meetings of the Board of Directors shall be
given orally or in writing, by telephone, including a voice messaging system or other system or technology designed to record and
communicate messages, facsimile, telegraph or telex, or by electronic mail or other electronic means, during normal business hours,
at least twenty-four (24) hours before the date and time of the meeting. If notice is sent by U.S. mail, it shall be sent by first
class mail, postage prepaid at least three (3) days before the date of the meeting. Notice of any special meeting may be waived
in writing or by electronic transmission at any time before or after the meeting and will be waived by any director by attendance
thereat, except when the director attends the meeting for the express purpose of objecting, at the beginning of the meeting, to
the transaction of any business because the meeting is not lawfully called or convened.
(e) Waiver of Notice. The transaction of all business at any meeting of the Board of Directors, or any committee thereof,
however called or noticed, or wherever held, shall be as valid as though it had been transacted at a meeting duly held after regular
call and notice, if a quorum be present and if, either before or after the meeting, each of the directors not present who did not
receive notice shall sign a written waiver of notice or shall waive notice by electronic transmission. All such waivers shall be
filed with the corporate records or made a part of the minutes of the meeting. Notice of any meeting will be waived by any director
by attendance thereat, except when the director attends the meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully called or convened.
Section 22. Quorum and Voting.
(a) Unless the Certificate of Incorporation requires a greater number, a quorum of the Board of Directors shall consist
of a majority of the directors currently serving on the Board of Directors (but in no event less than one third of the total authorized
number of directors); provided, however, at any meeting whether a quorum be present or otherwise, a majority of the directors
present may adjourn from time to time until the time fixed for the next regular meeting of the Board of Directors, without notice
other than by announcement at the meeting.
(b) At each meeting of the Board of Directors at which a quorum is present, all questions and business shall be determined
by the affirmative vote of a majority of the directors present, unless a different vote be required by law, the Certificate of
Incorporation or these Bylaws.
Section 23. Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action
required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting,
if all members of the Board of Directors or committee, as the case may be, consent thereto in writing or by electronic transmission.
The consent or consents shall be filed with the minutes of proceedings of the Board of Directors or committee, in the same paper
or electronic form as the minutes are maintained.
Section 24. Fees and Compensation. Directors shall be entitled to such compensation for their services as may be approved by the
Board of Directors or a committee thereof to which the Board of Directors has delegated such responsibility and authority, including,
if so approved, by resolution of the Board of Directors or a committee thereof to which the Board of Directors has delegated such
responsibility and authority, a fixed sum and expenses of attendance, if any, for attendance at each regular or special meeting
of the Board of Directors and at any meeting of a committee of the Board of Directors. Nothing herein contained shall be construed
to preclude any director from serving the corporation in any other capacity as an officer, agent, employee, or otherwise and receiving
compensation therefor.
Section 25. Committees.
(a) Executive Committee. The Board of Directors may appoint an Executive Committee to consist of one or more members of
the Board of Directors. The Executive Committee, to the extent permitted by law and provided in the resolution of the Board of
Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business
and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it;
but no such committee shall have the power or authority in reference to (i) approving or adopting, or recommending to the stockholders,
any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders
for approval, or (ii) adopting, amending or repealing any Bylaw of the corporation.
(b) Other Committees. The Board of Directors may, from time to time, appoint such other committees as may be permitted by
law. Such other committees appointed by the Board of Directors shall consist of one (1) or more members of the Board of Directors
and shall have such powers and perform such duties as may be prescribed by the resolution or resolutions creating such committees,
but in no event shall any such committee have the powers denied to the Executive Committee in these Bylaws.
(c) Term. The Board of Directors, subject to any requirements of any outstanding series of Preferred Stock and the provisions
of subsections (a) or (b) of this Section 25, may at any time increase or decrease the number of members of a committee or terminate
the existence of a committee. The membership of a committee member shall terminate on the date of his or her death or voluntary
resignation from the committee or from the Board of Directors. The Board of Directors may at any time for any reason remove any
individual committee member and the Board of Directors may fill any committee vacancy created by death, resignation, removal or
increase in the number of members of the committee. 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, and, in addition, in the absence
or disqualification of any member of a committee, the member or members thereof present at any meeting and not disqualified from
voting, whether or not he or she or they constitute a quorum, may unanimously appoint another member of the Board of Directors
to act at the meeting in the place of any such absent or disqualified member.
(d) Meetings. Unless the Board of Directors shall otherwise provide, regular meetings of the Executive Committee or any
other committee appointed pursuant to this Section 25 shall be held at such times and places, if any, as are determined by the
Board of Directors, or by any such committee, and when notice thereof has been given to each member of such committee, no further
notice of such regular meetings need be given thereafter. Special meetings of any such committee may be held at any place, if any,
which has been determined from time to time by such committee, and may be called by any director who is a member of such committee,
upon notice to the members of such committee of the time and place of such special meeting given in the manner provided for the
giving of notice to members of the Board of Directors of the time and place of special meetings of the Board of Directors. Notice
of any regular or special meeting of any committee may be waived in writing or by electronic transmission at any time before or
after the meeting and will be waived by any director by attendance thereat, except when the director attends such regular or special
meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting
is not lawfully called or convened. Unless otherwise provided by the Board of Directors in the resolutions authorizing the creation
of the committee, a majority of the authorized number of members of any such committee shall constitute a quorum for the transaction
of business, and the act of a majority of those members of the committee present at any meeting at which a quorum is present shall
be the act of such committee.
Section 26. Duties of Chairperson of the Board of Directors. The Chairperson of the Board of Directors, if appointed and when present,
shall preside at all meetings of the stockholders and the Board of Directors. The Chairperson of the Board of Directors shall perform
other duties commonly incident to the office and shall also perform such other duties and have such other powers, as the Board
of Directors shall designate from time to time.
Section 27. Organization. At every meeting of the directors, the Chairperson of the Board of Directors, or, if a Chairperson has
not been appointed or is absent, the Chief Executive Officer (if a director), or, if a Chief Executive Officer is absent, the President
(if a director), or if the President is absent, the most senior Vice President (if a director), or, in the absence of any such
person, a chairperson of the meeting chosen by a majority of the directors present, shall preside over the meeting. The Secretary,
or in his or her absence, any Assistant Secretary or other officer, director or other person directed to do so by the person presiding
over the meeting, shall act as secretary of the meeting.
Article
V
OFFICERS
Section 28. Officers Designated. The officers of the corporation shall include, if and when designated by the Board of Directors,
the Chief Executive Officer, the President, one or more Vice Presidents, the Secretary, the Chief Financial Officer and the Treasurer.
The Board of Directors may also appoint one or more Assistant Secretaries and Assistant Treasurers and such other officers and
agents with such powers and duties as it shall deem necessary. The Board of Directors may assign such additional titles to one
or more of the officers as it shall deem appropriate. Any one person may hold any number of offices of the corporation at any one
time unless specifically prohibited therefrom by law. The salaries and other compensation of the officers of the corporation shall
be fixed in the manner required by applicable law or stock exchange rules.
Section 29. Tenure and Duties of Officers.
(a) General. All officers shall be designated by and hold office at the pleasure of the Board of Directors and until their
successors shall have been duly elected and qualified, or until their earlier death, resignation, retirement, disqualification
or removal from office. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors.
(b) Duties of Chief Executive Officer. The Chief Executive Officer shall preside at all meetings of the stockholders and
at all meetings of the Board of Directors (if a director), unless the Chairperson of the Board of Directors has been appointed
and is present. Unless an officer has been appointed Chief Executive Officer of the corporation, the President shall be the chief
executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision, direction
and control of the business and officers of the corporation. To the extent that a Chief Executive Officer has been appointed and
no President has been appointed, all references in these Bylaws to the President shall be deemed references to the Chief Executive
Officer. The Chief Executive Officer shall perform other duties commonly incident to the office and shall also perform such other
duties and have such other powers, as the Board of Directors shall designate from time to time.
(c) Duties of President. The President shall preside at all meetings of the stockholders and at all meetings of the Board
of Directors (if a director), unless the Chairperson of the Board of Directors, or the Chief Executive Officer has been appointed
and is present. Unless another officer has been appointed Chief Executive Officer of the corporation, the President shall be the
chief executive officer of the corporation and shall, subject to the control of the Board of Directors, have general supervision,
direction and control of the business and officers of the corporation. The President shall perform other duties commonly incident
to the office and shall also perform such other duties and have such other powers, as the Board of Directors (or the Chief Executive
Officer, if the Chief Executive Officer and President are not the same person and the Board of Directors has delegated the designation
of the President’s duties to the Chief Executive Officer) shall designate from time to time.
(d) Duties of Vice Presidents. A Vice President may assume and perform the duties of the President in the absence or disability
of the President or whenever the office of President is vacant (unless the duties of the President are being filled by the Chief
Executive Officer). A Vice President shall perform other duties commonly incident to their office and shall also perform such other
duties and have such other powers as the Board of Directors or the Chief Executive Officer, or, if the Chief Executive Officer
has not been appointed or is absent, the President shall designate from time to time.
(e) Duties of Secretary; Assistant Secretary. The Secretary shall attend all meetings of the stockholders and of the Board
of Directors and shall record all acts and proceedings thereof in the minute book of the corporation. The Secretary shall give
notice in conformity with these Bylaws of all meetings of the stockholders and of all meetings of the Board of Directors and any
committee thereof requiring notice. The Secretary shall perform all other duties provided for in these Bylaws and other duties
commonly incident to the office and shall also perform such other duties and have such other powers, as the Board of Directors
shall designate from time to time. The Chief Executive Officer, or if no Chief Executive Officer is then serving, the President
may direct any Assistant Secretary or other officer to assume and perform the duties of the Secretary in the absence or disability
of the Secretary, and each Assistant Secretary shall perform other duties commonly incident to the office and shall also perform
such other duties and have such other powers as the Board of Directors or the Chief Executive Officer, or if no Chief Executive
Officer is then serving, the President shall designate from time to time.
(f) Duties of Chief Financial Officer. The Chief Financial Officer shall keep or cause to be kept the books of account of
the corporation in a thorough and proper manner and shall render statements of the financial affairs of the corporation in such
form and as often as required by the Board of Directors or the Chief Executive Officer, or if no Chief Executive Officer is then
serving, the President. The Chief Financial Officer, subject to the order of the Board of Directors, shall have the custody of
all funds and securities of the corporation. The Chief Financial Officer shall perform other duties commonly incident to the office
and shall also perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer, or
if no Chief Executive Officer is then serving, the President shall designate from time to time. To the extent that a Chief Financial
Officer has been appointed and no Treasurer has been appointed, all references in these Bylaws to the Treasurer shall be deemed
references to the Chief Financial Officer. The Chief Executive Officer, or if no Chief Executive Officer is then serving, the President
may direct the Treasurer, if any, or any Assistant Treasurer, or the controller or any assistant controller to assume and perform
the duties of the Chief Financial Officer in the absence or disability of the Chief Financial Officer, and each Treasurer and Assistant
Treasurer and each controller and assistant controller shall perform other duties commonly incident to the office and shall also
perform such other duties and have such other powers as the Board of Directors or the Chief Executive Officer, or if no Chief Executive
Officer is then serving, the President shall designate from time to time.
(g) Duties of Treasurer; Assistant Treasurer. Unless another officer has been appointed Chief Financial Officer of the corporation,
the Treasurer shall be the chief financial officer of the corporation and shall keep or cause to be kept the books of account of
the corporation in a thorough and proper manner and shall render statements of the financial affairs of the corporation in such
form and as often as required by the Board of Directors or the Chief Executive Officer, or if no Chief Executive Officer is then
serving, the President, and, subject to the order of the Board of Directors, shall have the custody of all funds and securities
of the corporation. The Treasurer shall perform other duties commonly incident to the office and shall also perform such other
duties and have such other powers as the Board of Directors or the Chief Executive Officer, or if no Chief Executive Officer is
then serving, the President and Chief Financial Officer (if not Treasurer) shall designate from time to time. The Chief Executive
Officer, or if no Chief Executive Officer is then serving, the President and Chief Financial Officer may direct any Assistant Treasurer
or the controller or any assistant controller to assume and perform the duties of the Treasurer in the absence or disability of
the Treasurer, and each Assistant Treasurer and each controller and assistant controller shall perform other duties commonly incident
to the office and shall also perform such other duties and have such other powers as the Board of Directors or the Chief Executive
Officer, or if no Chief Executive Officer is then serving, the President and Chief Financial Officer shall designate from time
to time.
Section 30. Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to
any other officer or agent, notwithstanding any provision hereof.
Section 31. Resignations. Any officer may resign at any time by giving notice in writing or by electronic transmission to the Board
of Directors or to the Chief Executive Officer, or if no Chief Executive Officer is then serving, to the President or to the Secretary.
Any such resignation shall be effective when received by the person or persons to whom such notice is given, unless a later time
is specified therein, in which event the resignation shall become effective at such later time. Unless otherwise specified in such
notice, the acceptance of any such resignation shall not be necessary to make it effective. Any resignation shall be without prejudice
to the rights, if any, of the corporation under any contract with the resigning officer.
Section 32. Removal. Any officer may be removed from office at any time, either with or without cause, by the Board of Directors,
or by any committee or superior officer upon whom such power of removal may have been conferred by the Board of Directors.
Article
VI
EXECUTION OF CORPORATE INSTRUMENTS AND VOTING
OF SECURITIES OWNED BY THE CORPORATION
Section 33. Execution of Corporate Instruments. The Board of Directors may, in its discretion, determine the method and designate
the signatory officer or officers, or other person or persons, to execute on behalf of the corporation any corporate instrument
or document, or to sign on behalf of the corporation the corporate name without limitation, or to enter into contracts on behalf
of the corporation, except where otherwise provided by applicable law or these Bylaws, and such execution or signature shall be
binding upon the corporation. All checks and drafts drawn on banks or other depositaries on funds to the credit of the corporation
or in special accounts of the corporation shall be signed by such person or persons as the Board of Directors shall authorize so
to do. Unless (i) authorized or ratified by the Board of Directors or (ii) within the agency power of an officer or any designee
of any such officer (each, an “Authorized Employee”), no officer, agent or employee other than an Authorized
Employee shall have any power or authority to bind the corporation by any contract or engagement or to pledge its credit or to
render it liable for any purpose or for any amount.
Section 34. Voting of Securities Owned by the Corporation. All stock and other securities and interests of other corporations and
entities owned or held by the corporation for itself, or for other parties in any capacity, shall be voted, and all proxies with
respect thereto shall be executed, by the person authorized so to do by resolution of the Board of Directors, or, in the absence
of such authorization, by the Chairperson of the Board of Directors, the Chief Executive Officer, the President, or any Vice President.
Article
VII
SHARES
OF STOCK
Section 35. Form and Execution of Certificates. The shares of the corporation shall be represented by certificates, or shall be
uncertificated if so provided by resolution or resolutions of the Board of Directors. Certificates, if any, for the shares of stock
shall be in such form as is consistent with the Certificate of Incorporation and applicable law. Certificates of shares of stock
shall note conspicuously that the corporation is a public benefit corporation formed pursuant to Subchapter XV of the DGCL. Every
holder of stock in the corporation represented by certificate shall be entitled to have a certificate signed by, or in the name
of, the corporation by any two (2) authorized officers of the corporation, certifying the number of shares owned by such holder
in the corporation. Any or all of the signatures on the certificate may be facsimiles. In case any officer, transfer agent, or
registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer,
transfer agent, or registrar before such certificate is issued, it may be issued with the same effect as if he or she were such
officer, transfer agent, or registrar at the date of issue. Any notice given by the corporation pursuant to Section 151(f) of the
DGCL upon the issuance or transfer of uncertificated shares shall state conspicuously that the corporation is a public benefit
corporation formed pursuant to Subchapter XV of the DGCL.
Section 36. Lost Certificates. A new certificate or certificates shall be issued in place of any certificate or certificates theretofore
issued by the corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate of stock to be lost, stolen, or destroyed. The corporation may require, as a condition precedent
to the issuance of a new certificate or certificates, the owner of such lost, stolen, or destroyed certificate or certificates,
or the owner’s legal representative, to agree to indemnify the corporation in such manner as it shall require or to give
the corporation a surety bond in such form and amount as it may direct as indemnity against any claim that may be made against
the corporation with respect to the certificate alleged to have been lost, stolen, or destroyed.
Section 37. Transfers.
(a) Transfers of record of shares of stock of the corporation shall be made only upon its books by the holders thereof,
in person or by attorney duly authorized, and, in the case of stock represented by certificate, upon the surrender of a properly
endorsed certificate or certificates for a like number of shares.
(b) The corporation shall have power to enter into and perform any agreement with any number of stockholders of any one
or more classes or series of stock of the corporation to restrict the transfer of shares of stock of the corporation of any one
or more classes owned by such stockholders in any manner not prohibited by the DGCL.
Section 38. Fixing Record Dates.
(a) In order that the corporation may determine the stockholders entitled to notice of 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, subject to applicable law,
not be more than sixty (60) nor fewer than ten (10) days before the date of such meeting. If the Board of Directors so fixes a
date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board
of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be
the date for making such determination. If no record date is fixed by the Board of Directors, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day
on which notice is given, or if notice is waived, at the close of business on the day next preceding the day on which the meeting
is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for determination
of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders
entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled
to vote in accordance herewith at the adjourned meeting.
(b) In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange
of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which record
date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not
more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
Section 39. Registered Stockholders. The corporation shall be entitled to recognize the exclusive right of a person registered on
its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
Article
VIII
OTHER SECURITIES OF
THE CORPORATION
Section 40. Execution of Other Securities. All bonds, debentures and other corporate securities of the corporation, other than stock
certificates (covered in Section 35), may be signed by any executive officer (as defined in Article XI) or any other officer or
person as may be authorized by the Board of Directors; provided, however, that where any such bond, debenture or other corporate
security shall be authenticated by the manual signature, or where permissible facsimile signature, of a trustee under an indenture
pursuant to which such bond, debenture or other corporate security shall be issued, the signatures of the persons signing and attesting
the corporate seal on such bond, debenture or other corporate security may be the imprinted facsimile of the signatures of such
persons. Interest coupons appertaining to any such bond, debenture or other corporate security, authenticated by a trustee as aforesaid,
shall be signed by an executive officer of the corporation or such other officer or person as may be authorized by the Board of
Directors, or bear imprinted thereon the facsimile signature of such person. In case any officer who shall have signed or attested
any bond, debenture or other corporate security, or whose facsimile signature shall appear thereon or on any such interest coupon,
shall have ceased to be such officer before the bond, debenture or other corporate security so signed or attested shall have been
delivered, such bond, debenture or other corporate security nevertheless may be adopted by the corporation and issued and delivered
as though the person who signed the same or whose facsimile signature shall have been used thereon had not ceased to be such officer
of the corporation.
Article
IX
DIVIDENDS
Section 41. Declaration of Dividends. Dividends upon the outstanding capital stock of the corporation, subject to the provisions
of the Certificate of Incorporation and applicable law, if any, may be declared by the Board of Directors. Dividends may be paid
in cash, in property, or in shares of the corporation’s capital stock, subject to the provisions of the Certificate of Incorporation
and applicable law.
Section 42. Dividend Reserve. Before payment of any dividend, there may be set aside out of any funds of the corporation available
for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, thinks proper as a reserve
or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation,
or for such other purpose as the Board of Directors shall think conducive to the interests of the corporation, and the Board of
Directors may modify or abolish any such reserve in the manner in which it was created.
Article
X
FISCAL
YEAR
Section 43. Fiscal Year. The fiscal year of the corporation shall end on December 31 or on such other date as may otherwise be fixed
by resolution of the Board of Directors.
Article
XI
INDEMNIFICATION
Section 44. Indemnification of Directors, Executive Officers, Employees and Other Agents.
(a) Directors and Executive Officers. The corporation shall indemnify its directors and executive officers (for the purposes
of this Article XI, “executive officers” shall have the meaning defined in Rule 3b-7 promulgated under
the 1934 Act) to the fullest extent permitted by the DGCL or any other applicable law as it presently exists or may hereafter be
amended, who were or are made a party or are threatened to be made a party or are otherwise involved in 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,
against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person; provided,
however, that the corporation may modify the extent of such indemnification by individual contracts with its directors and
executive officers, in which case such contract shall supersede and replace the provisions hereof; and, provided, further,
that the corporation shall not be required to indemnify any director or executive officer in connection with any proceeding (or
part thereof) initiated by such person unless (i) such indemnification is expressly required to be made by law, (ii) the proceeding
was authorized by the Board of Directors of the corporation, (iii) such indemnification is provided by the corporation, in its
sole discretion, pursuant to the powers vested in the corporation under the DGCL or any other applicable law or (iv) such indemnification
is required to be made under subsection (d) of this Section 44.
(b) Other Officers, Employees and Other Agents. The corporation shall have the power to indemnify (including the power to
advance expenses in a manner consistent with subsection (c) of this Section 44) its other officers, employees and other agents
as set forth in the DGCL or any other applicable law. The Board of Directors shall have the power to delegate the determination
of whether indemnification shall be given to any such person except executive officers to such officers or other persons as the
Board of Directors shall determine.
(c) Expenses. The corporation shall advance to any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he or she is or was a director or executive officer of the corporation, or is or was serving at the request of
the corporation as a director or executive officer of another corporation, partnership, joint venture, trust or other enterprise,
prior to the final disposition of the proceeding, promptly following request therefor, all expenses incurred by any director or
executive officer in connection with such proceeding; provided, however, that if the DGCL requires, an advancement of expenses
incurred by a director or executive officer in his or her capacity as a director or executive officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall
be made only upon delivery to the corporation of an undertaking (hereinafter an “undertaking”), by or
on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision
from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee
is not entitled to be indemnified for such expenses under this section or otherwise.
Notwithstanding the foregoing, unless otherwise
determined pursuant to paragraph (d) of this Section 44, no advance shall be made by the corporation to an executive officer of
the corporation (except by reason of the fact that such executive officer is or was a director of the corporation in which event
this paragraph shall not apply) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, if
a determination is reasonably and promptly made (i) by a majority vote of directors who were not parties to the proceeding, even
if not a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than
a quorum, or (iii) if there are no such directors, or such directors so direct, by independent legal counsel in a written opinion,
that the facts known to the decision-making party at the time such determination is made demonstrate clearly and convincingly that
such person acted in bad faith or in a manner that such person did not reasonably believe to be in or not opposed to the best interests
of the corporation.
(d) Enforcement. Without the necessity of entering into an express contract, all rights to indemnification and advances
to directors and executive officers under this Bylaw shall be deemed to be contractual rights and be effective to the same extent
and as if provided for in a contract between the corporation and the director or executive officer. Any right to indemnification
or advances granted by this section to a director or executive officer shall be enforceable by or on behalf of the person holding
such right in the Court of Chancery of the State of Delaware if (i) the claim for indemnification or advances is denied by the
Board of Directors, in whole or in part, or (ii) no disposition of such claim is made within ninety (90) days of request therefor.
To the extent permitted by law, the claimant in such enforcement action, if successful in whole or in part, shall be entitled to
be paid also the expense of prosecuting the claim to the fullest extent permitted by law. In connection with any claim for indemnification,
the corporation shall be entitled to raise as a defense to any such action that the claimant has not met the standards of conduct
that make it permissible under the DGCL or any other applicable law for the corporation to indemnify the claimant for the amount
claimed. In connection with any claim by an executive officer of the corporation (except in any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that such executive officer is or was a director of the
corporation) for advances, the corporation shall be entitled to raise a defense as to any such action clear and convincing evidence
that such person acted in bad faith or in a manner that such person did not reasonably believe to be in or not opposed to the best
interests of the corporation, or with respect to any criminal action or proceeding that such person acted without reasonable cause
to believe that his or her conduct was lawful. Neither the failure of the corporation (including its Board of Directors, independent
legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the DGCL
or any other applicable law, nor an actual determination by the corporation (including its Board of Directors, independent legal
counsel or its stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the action
or create a presumption that claimant has not met the applicable standard of conduct. In any suit brought by a director or executive
officer to enforce a right to indemnification or to an advancement of expenses hereunder, the burden of proving that the director
or executive officer is not entitled to be indemnified, or to such advancement of expenses, under this section or otherwise shall
be on the corporation.
(e) Non-Exclusivity of Rights. The rights conferred on any person by this Bylaw shall not be exclusive of any other right
which such person may have or hereafter acquire under any applicable statute, provision of the Certificate of Incorporation, Bylaws,
agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his or her official capacity and
as to action in another capacity while holding office. The corporation is specifically authorized to enter into individual contracts
with any or all of its directors, officers, employees or agents respecting indemnification and advances, to the fullest extent
not prohibited by the DGCL, or by any other applicable law.
(f) Survival of Rights. The rights conferred on any person by this Bylaw shall continue as to a person who has ceased to
be a director or executive officer or officer, employee or other agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(g) Insurance. To the fullest extent permitted by the DGCL or any other applicable law, the corporation, upon approval by
the Board of Directors, may purchase insurance on behalf of any person required or permitted to be indemnified pursuant to this
section.
(h) Amendments. Any amendment, repeal or modification of this section shall only be prospective and shall not affect the
rights under this Bylaw in effect at the time of the alleged occurrence of any action or omission to act that is the cause of any
proceeding against any agent of the corporation.
(i) Saving Clause. If this Bylaw or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction,
then the corporation shall nevertheless indemnify each director and executive officer to the full extent not prohibited by any
applicable portion of this section that shall not have been invalidated, or by any other applicable law. If this section shall
be invalid due to the application of the indemnification provisions of another jurisdiction, then the corporation shall indemnify
each director and executive officer to the full extent under any other applicable law.
(j) Certain Definitions. For the purposes of this Bylaw, the following definitions shall apply:
(i) The term “proceeding” shall be broadly construed and shall include, without limitation, the
investigation, preparation, prosecution, defense, settlement, arbitration and appeal of, and the giving of testimony in, any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative.
(ii) The term “expenses” shall be broadly construed and shall include, without limitation, court
costs, attorneys’ fees, witness fees, fines, amounts paid in settlement or judgment and any other costs and expenses of any
nature or kind incurred in connection with any proceeding.
(iii) The term the “corporation” shall include, in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence
had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person
who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this section with respect to the resulting or surviving
corporation as he or she would have with respect to such constituent corporation if its separate existence had continued.
(iv) References to a “director,” “executive officer,” “officer,”
“employee,” or “agent” of the corporation shall include, without limitation,
situations where such person is serving at the request of the corporation as, respectively, a director, executive officer, officer,
employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise.
(v) References to “other enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving
at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation
which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner
“not opposed to the best interests of the corporation” as referred to in this section.
Article
XII
NOTICES
Section 45. Notices.
(a) Notice to Stockholders. Notice to stockholders of stockholder meetings shall be given as provided in Section 7 herein.
Without limiting the manner by which notice may otherwise be given effectively to stockholders, including under any agreement or
contract with such stockholder, subject to Section 232(e) of the DGCL, any notice to stockholders given by the corporation under
any provision of the DGCL, the Certificate of Incorporation or the Bylaws shall be effective if given by a form of electronic transmission
consented to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written
notice or electronic transmission to the corporation. Notice shall be deemed given pursuant to this Section 45, (1) if by facsimile
telecommunication, when directed to a number at which the stockholder has consented to receive notice; (2) if by a posting on an
electronic network together with separate notice to the stockholder of such specific posting, upon the later of (a) such posting,
and (b) the giving of such separate notice; and (3) if by any other form of electronic transmission, when directed to the stockholder.
For purposes of these Bylaws, (1) “Electronic transmission” means any form of communication, not directly
involving the physical transmission of paper, including the use of, or participation in, one
or more electronic networks or databases (including one or more distributed
electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and
that may be directly reproduced in paper form by such a recipient through an automated process; (2) “Electronic mail”
means an electronic transmission directed to a unique electronic mail address (which electronic mail shall be deemed to include
any files attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information
of an officer or agent of the corporation who is available to assist with accessing such files and information); and (3) “Electronic
mail address” means a destination, commonly expressed as a string of characters, consisting of a unique user name
or mailbox (commonly referred to as the “local part” of the address) and a reference to an internet domain (commonly
referred to as the “domain part” of the address), whether or not displayed, to which electronic mail can be sent or
delivered.
(b) Notice to Directors. Any notice required to be given to any director may be given by the method stated in subsection
(a) or as otherwise provided in these Bylaws, with notice other than one which is delivered personally to be sent to such address
as such director shall have filed in writing with the Secretary, or, in the absence of such filing, to the last known address of
such director.
(c) Affidavit of Mailing. An affidavit of mailing, executed by a duly authorized and competent employee of the corporation
or its transfer agent appointed with respect to the class of stock affected or other agent, specifying the name and address or
the names and addresses of the stockholder or stockholders, or director or directors, to whom any such notice or notices was or
were given, and the time and method of giving the same, shall in the absence of fraud, be prima facie evidence of the facts therein
contained.
(d) Methods of Notice. It shall not be necessary that the same method of giving notice be employed in respect of all recipients
of notice, but one permissible method may be employed in respect of any one or more, and any other permissible method or methods
may be employed in respect of any other or others.
(e) Notice to Person with Whom Communication is Unlawful. Whenever notice is required to be given, under any provision of
law or of the Certificate of Incorporation or Bylaws, to any person with whom communication is unlawful, the giving of such notice
to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license
or permit to give such notice to such person. Any action or meeting which shall be taken or held without notice to any such person
with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that
the action taken by the corporation is such as to require the filing of a certificate under any provision of the DGCL, the certificate
shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except
such persons with whom communication is unlawful.
(f) Notice to Stockholders Sharing an Address. Except as otherwise prohibited under the DGCL, any notice given under the
provisions of the DGCL, the Certificate of Incorporation or the Bylaws shall be effective if given by a single written notice to
stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. Such consent
shall have been deemed to have been given if such stockholder fails to object in writing to the corporation within sixty (60) days
of having been given notice by the corporation of its intention to send the single notice. Any consent shall be revocable by the
stockholder by written notice to the corporation.
Article
XIII
AMENDMENTS
Section 46. Amendments. Subject to the limitations set forth in Section 44(h) of these Bylaws or the provisions of the Certificate
of Incorporation, the Board of Directors is expressly empowered to adopt, amend or repeal the Bylaws. Any adoption, amendment or
repeal of the Bylaws by the Board of Directors shall require the approval of a majority of the authorized number of directors.
The stockholders also shall have power to adopt, amend or repeal the Bylaws; provided, however, that, in addition to any vote of
the holders of any class or series of stock of the corporation required by law or by the Certificate of Incorporation, such action
by stockholders shall require the affirmative vote of the holders of at least sixty-six and two-thirds percent (66 2/3%) of the
voting power of all of the then-outstanding shares of the capital stock of the corporation entitled to vote generally in the election
of directors, voting together as a single class.
Article
XIV
LOANS
TO OFFICERS
Section 47. Loans to Officers. Except as otherwise prohibited by applicable law, 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 subsidiaries, including any officer
or employee who is a director of the corporation or its subsidiaries, whenever, in the judgment of the Board of Directors, such
loan, guarantee or assistance may reasonably be expected to benefit the corporation. The loan, guarantee or other assistance may
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 in these Bylaws shall be deemed to deny, limit or restrict
the powers of guaranty or warranty of the corporation at common law or under any statute.
ARTICLE XV
BOOKS AND RECORDS
Section 48. The
books and records of the corporation may be kept within or outside the State of Delaware at such place or places as may from time
to time be designated by the Board of Directors. Any books or records maintained by the corporation in the regular course of its
business, including its stock ledger, books of account, and minute books, may be kept on, or by means of, or be in the form of,
any information storage device or method; provided, however, that the books and records so kept can be converted into clearly
legible paper form within a reasonable time. The corporation shall so convert any books or records so kept upon the request of
any person entitled to inspect such records pursuant to the Certificate of Incorporation, these Bylaws or the DGCL.
Article
XVI
PUBLIC BENEFIT CORPORATION PROVISIONS
Section 49. The corporation shall include in every notice of a meeting of stockholders a statement
to the effect that it is a public benefit corporation under Subchapter XV of the DGCL.
Section 50. The corporation shall no less than biennially provide the stockholders with a
statement as to the corporation’s promotion of the public benefit or public benefits identified in the Certificate of Incorporation
and of the best interests of those materially affected by the corporation’s conduct. The statement shall include: (i) the
objectives the Board of Directors has established to promote such public benefit or public benefits and interests; (ii) the standards
the Board of Directors has adopted to measure the corporation’s progress in promoting such public benefit or public benefits
and interests; (iii) objective factual information based on those standards regarding the corporation’s success in meeting
the objectives for promoting such public benefit or public benefits and interests; and (iv) an assessment of the corporation’s
success in meeting the objectives and promoting such public benefit or public benefits and interests.
