Exhibit 3.1
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Delaware
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Page 1
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The First State
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I, JEFFREY W. BULLOCK,
SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF INCORPORATION
OF “MALLARD ACQUISITION CORP.”, FILED IN THIS OFFICE ON THE TWENTY-SIXTH DAY OF FEBRUARY, A.D. 2020, AT 5:02 O’CLOCK
P.M.
A FILED COPY OF THIS CERTIFICATE
HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER OF DEEDS.
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/s/
Jeffrey W. Bullock
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Jeffrey W. Bullock,
Secretary of State
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7871910 8100
SR# 20201585775
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Authentication:
202477175
Date: 02-27-20
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You may verify this certificate online at corp.delaware.gov/authver.shtml
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State
of Delaware
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Secretary
of State
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Division
of Corporations
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Delivered
05:02 PM 02/26/2020
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CERTIFICATE
OF INCORPORATION
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FILED
05:02 PM 02/26/2020
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OF
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SR
20201585775 - File Number 7871910
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MALLARD
ACQUISITION CORP.
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February 26, 2020
The undersigned, for the
purposes of forming a corporation under the laws of the State of Delaware, does make, file, and record this Certificate of Incorporation
(the “Certificate”), and does hereby certify as follows:
ARTICLE I
NAME
The name of the corporation is Mallard Acquisition
Corp. (the “Corporation”).
ARTICLE II
PURPOSE
The purpose of the Corporation
is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State
of Delaware, as amended from time to time (the “DGCL” ).
ARTICLE
III
REGISTERED AGENT
The address of the Corporation’s
registered office in the State of Delaware is 251 Little Falls Drive, in the City of Wilmington, County of New Castle, State of
Delaware, 19808, and the name of the Corporation’s registered agent at such address is Corporation Service Company.
ARTICLE
IV
CAPITALIZATION
Section 4.1 Authorized Capital Stock.
The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation
is authorized to issue is 111,000,000 shares, consisting of (a) 110,000,000 shares of common stock (the “Common Stock”),
including (i) 100,000,000 shares of Class A Common Stock (the “Class A Common Stock”), and (ii) 10,000,000
shares of Class B Common Stock (the “Class B Common Stock”), and (b) 1,000,000 shares of preferred stock
(the “Preferred Stock”).
Section 4.2 Preferred Stock. The
board of directors of the Corporation (the “Board”) is hereby expressly authorized to provide, out of
the unissued shares of the Preferred Stock, one or more series of Preferred Stock, and to establish from time to time the number
of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative,
participating, optional, special and other rights, if any, of each such series and any qualifications, limitations and restrictions
thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance of such series and
included in a certificate of designation (a “Preferred Stock Designation”) filed pursuant to the DGCL,
and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any
such resolution or resolutions.
Section 4.3 Common Stock.
(i) Except
as otherwise required by law or this Certificate (including any Preferred Stock Designation), the holders of the Common Stock shall
exclusively possess all voting power with respect to the Corporation.
(ii) Except
as otherwise required by law or this Certificate (including any Preferred Stock Designation), the holders of shares of Common Stock
shall be entitled to one vote for each such share on each matter properly submitted to the stockholders on which the holders of
the Common Stock are entitled to vote.
(iii) Except
as otherwise required by law or this Certificate (including any Preferred Stock Designation), at any annual or special meeting
of the stockholders of the Corporation, holders of the Class A Common Stock and holders of the Class B Common Stock, voting together
as a single class, shall have the exclusive right to vote for the election of directors and on all other matters properly submitted
to a vote of the stockholders. Notwithstanding the foregoing, except as otherwise required by law or this Certificate (including
any Preferred Stock Designation), holders of shares of any series of Common Stock shall not be entitled to vote on any amendment
to this Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more
outstanding series of Preferred Stock or other series of Common Stock if the holders of such affected series of Preferred Stock
or Common Stock, as applicable, are entitled, either separately or together with the holders of one or more other such series,
to vote thereon pursuant to this Certificate (including any Preferred Stock Designation) or the DGCL.
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(b)
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Class B Common Stock.
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(i) Shares of Class
B Common Stock shall be convertible into shares of Class A Common Stock on a one-for-one basis (the “Initial Conversion
Ratio”) automatically upon the consummation of the Business Combination (as defined below).
(ii) Notwithstanding the Initial
Conversion Ratio, in the case that additional shares of Class A Common Stock, or equity-linked securities, are issued or deemed
issued in excess of the amounts sold in the Corporation’s initial public offering of securities and related to the closing
of the initial Business Combination, all issued and outstanding shares of Class B Common Stock shall automatically convert into
shares of Class A Common Stock at the time of the closing of the Corporation’s initial merger, capital stock exchange, asset
acquisition, stock purchase, reorganization or similar business combination with one or more businesses (the “Business
Combination”) at a ratio for which;
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the numerator shall be equal to the sum of (A) 25% of all shares of Class A Common Stock issued or issuable (upon the
conversion or exercise of any equity-linked securities or otherwise) by the Corporation, related to or in connection with the
consummation of the initial Business Combination (excluding any securities issued or issuable to any seller in the initial
Business Combination) plus (B) the number of shares of Class B Common Stock issued and outstanding prior to the closing of
the initial Business Combination; and
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the denominator shall be the number of shares of Class B Common Stock issued and outstanding prior to the closing of the initial
Business Combination.
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Notwithstanding anything to the
contrary contained herein, (i) the foregoing adjustment to the Initial Conversion Ratio may be waived as to any particular issuance
or deemed issuance of additional
shares of Class A Common Stock or equity-linked securities by the written consent or agreement of holders of a majority of the
shares of Class B Common Stock then outstanding consenting or agreeing separately as a single class in the manner provided in Section
4.3(b)(iii), and (ii) in no event shall the Class B Common Stock convert into Class A Common Stock at a ratio that is less
than one-for-one.
The foregoing conversion
ratio shall also be adjusted to account for any subdivision (by stock split, subdivision, exchange, stock dividend, reclassification,
recapitalization or otherwise) or combination (by reverse stock split, exchange, reclassification, recapitalization or otherwise)
or similar reclassification or recapitalization of the outstanding shares of Class A Common Stock into a greater or lesser number
of shares occurring after the original filing of this Certificate without a proportionate and corresponding subdivision, combination
or similar reclassification or recapitalization of the outstanding shares of Class B Common Stock.
Each share of Class B Common
Stock shall convert into its pro rata number of shares of Class A Common Stock pursuant to this Section 4.3(b). The
pro rata share for each holder of Class B Common Stock will be determined as follows: Each share of Class B Common Stock
shall convert into such number of shares of Class A Common Stock as is equal to the product of one (1) multiplied by a fraction,
the numerator of which shall be the total number of shares of Class A Common Stock into which all of the issued and outstanding
shares of Class B Common Stock shall be converted pursuant to this Section 4.3(b) and the denominator of which shall be
the total number of issued and outstanding shares of Class B Common Stock at the time of conversion.
(iii) Voting. Except
as otherwise required by law or this Certificate (including any Preferred Stock Designation), for so long as any shares of
Class B Common Stock shall remain outstanding, the Corporation shall not, without the prior vote or written consent of the
holders of a majority of the shares of Class B Common Stock then outstanding, voting separately as a single class, amend,
alter or repeal any provision of this Certificate, whether by merger, consolidation or otherwise, if such amendment,
alteration or repeal would alter or change the powers, preferences or relative, participating, optional or other or special
rights of the Class B Common Stock. Any action required or permitted to be taken at any meeting of the holders of Class B
Common Stock may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of the outstanding Class B Common Stock having not less
than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of
Class B Common Stock were present and voted and shall be delivered to the Corporation by delivery to its registered office in
the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book
in which minutes of proceedings of stockholders are recorded. Delivery made to the Corporation’s registered office
shall be by hand or by certified or registered mail, return receipt requested. Prompt written notice of the taking of
corporate action without a meeting by less than unanimous written consent of the holders of Class B Common Stock shall, to
the extent required by law, be given to those holders of Class B Common Stock who have not consented in writing and who, if
the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of
such meeting had been the date that written consents signed by a sufficient number of holders of Class B Common Stock to take
the action were delivered to the Corporation.
(c) Dividends. Subject
to applicable law, the rights, if any, of the holders of any outstanding series of the Preferred Stock, the holders of shares
of Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital
stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the
Corporation legally available therefor and shall share equally on a per share basis in such dividends and distributions.
(d) Liquidation,
Dissolution or Winding Up of the Corporation. Subject to applicable law, the rights, if any, of the holders of any outstanding
series of the Preferred Stock, in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation,
after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of shares of Common Stock
shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably
in proportion to the number of shares of Class A Common Stock (on an as converted basis with respect to the Class B Common Stock)
held by them.
Section 4.4 Rights and
Options. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to
acquire from the Corporation any shares of its capital stock of any class or classes, with such rights, warrants and options to
be evidenced by or in instrument(s) approved by the Board. The Board is empowered to set the exercise price, duration, times for
exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be received
for any shares of capital stock issuable upon exercise thereof may not be less than the par value thereof.
ARTICLE V
INCORPORATOR
The name and mailing address
of the sole incorporator of the Corporation are as follows:
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Name
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Address
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Stuart Neuhauser
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Ellenoff Grossman & Schole LLP
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1345 Avenue of the Americas
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New York, NY 10105
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ARTICLE
VI
DIRECTORS
Section 6.1 Board Powers. The business
and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority
expressly conferred upon the Board by statute, this Certificate or the Bylaws (the “Bylaws” of the Corporation,
the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the DGCL, this Certificate and any Bylaws adopted by the stockholders; provided, however,
that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if
such Bylaws had not been adopted.
Section 6.2 Election.
Unless and except to the extent that the Bylaws shall so require, the election of directors need not be by written ballot.
ARTICLE VII
BYLAWS
In furtherance and not in limitation of the
powers conferred upon it by law, the Board shall have the power to adopt, amend, alter, change, add or repeal the Bylaws. The
Bylaws also may be adopted, amended, altered or repealed by the stockholders.
ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION
Section 8.1 Limitation of Director
Liability. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for
monetary damages for any breach of fiduciary duty by such director as a director, except for liability (i) for any breach of
the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any
transaction from which the director derived an improper personal benefit. If the DGCL is amended to authorize corporate
action further eliminating or limiting the personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Any repeal or
modification of this Section 8.1 by the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation with respect to events occurring prior to the time of such repeal or
modification.
Section 8.2 Indemnification.
The Corporation, to the full extent permitted by Section 145 of the DGCL, as amended from time to time, shall indemnify all persons
whom it may indemnify pursuant thereto. Expenses (including attorneys’ fees) incurred by an officer or director in defending
any civil, criminal, administrative, or investigative action, suit or proceeding for which such officer or director may be entitled
to indemnification hereunder shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized hereby.
ARTICLE IX
INSOLVENCY; SALE, LEASE OR
EXCHANGE OF ASSETS
Whenever a compromise or arrangement
is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders
or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way
of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for
this Corporation under Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver
or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors
or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned
in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise
or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding
on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the
case may be, and also on this Corporation.
ARTICLE X
AMENDMENT OF CERTIFICATE OF
INCORPORATION
The Corporation reserves the
right to amend, alter, change, add or repeal any provision contained in this Certificate (including any Preferred Stock Designation),
in the manner now or hereafter prescribed by this Certificate and the DGCL; and except as set forth in ARTICLE VIII, all
rights, preferences and privileges herein conferred upon stockholders, directors or any other persons by and pursuant to this Certificate
in its present form or as hereafter amended are granted subject to the right reserved in this Article.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned
incorporator has executed this Certificate as of the date first set forth above.
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By:
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/s/
Stuart Neuhauser
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Name:
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Stuart
Neuhauser
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Title:
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Sole
Incorporator
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6
Exhibit 3.5
BY LAWS
OF
MALLARD
ACQUISITION CORP.
(THE
“CORPORATION”)
ARTICLE I
OFFICES
Section 1.1. Registered
Office. The registered office of the Corporation within the State of Delaware shall be located at either (a) the principal
place of business of the Corporation in the State of Delaware or (b) the office of the corporation or individual acting as
the Corporation’s registered agent in Delaware.
Section 1.2. Additional
Offices. The Corporation may, in addition to its registered office in the State of Delaware, have such other offices and places
of business, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the “Board”)
may from time to time determine or as the business and affairs of the Corporation may require.
ARTICLE II
STOCKHOLDERS MEETINGS
Section 2.1. Annual
Meetings. The annual meeting of stockholders shall be held at such place, either within or without the State of Delaware, and
time and on such date as shall be determined by the Board and stated in the notice of the meeting, provided that the Board 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 pursuant to Section 9.5(a). At each annual meeting, the stockholders entitled to vote on such matters
shall elect those directors of the Corporation to fill any term of a directorship that expires on the date of such annual meeting
and may transact any other business as may properly be brought before the meeting.
Section 2.2. Special
Meetings. Subject to the rights of the holders of any outstanding series of the preferred stock of the Corporation (“Preferred
Stock”), and to the requirements of applicable law, special meetings of stockholders, for any purpose or purposes,
may be called only by the Chairman of the Board, Chief Executive Officer, or the Board pursuant to a resolution adopted by a majority
of the Board, and may not be called by any other person. Special meetings of stockholders shall be held at such place, either within
or without the State of Delaware, and at such time and on such date as shall be determined by the Board and stated in the Corporation’s
notice of the meeting, provided that the Board 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 pursuant to Section 9.5(a).
Section 2.3. Notices.
Written notice of each stockholders meeting stating the place, if any, date, and time of the meeting, and the means of remote communication,
if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting and the record date
for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining
stockholders entitled to notice of the meeting, shall be given in the manner permitted by Section 9.3 to
each stockholder entitled to vote thereat as of the record date for determining the stockholders entitled to notice of the meeting,
by the Corporation not less than 10 nor more than 60 days before the date of the meeting unless otherwise required by the
General Corporation Law of the State of Delaware (the “DGCL”). If said notice is for a stockholders meeting
other than an annual meeting, it shall in addition state the purpose or purposes for which the meeting is called, and the business
transacted at such meeting shall be limited to the matters so stated in the Corporation’s notice of meeting (or any supplement
thereto). Any meeting of stockholders as to which notice has been given may be postponed, and any meeting of stockholders as to
which notice has been given may be cancelled, by the Board upon public announcement (as defined in Section 2.7(c)) given
before the date previously scheduled for such meeting.
Section 2.4. Quorum.
Except as otherwise provided by applicable law, the Corporation’s Certificate of Incorporation, as the same may be amended
or restated from time to time (the “Certificate of Incorporation”) or these By Laws, the presence, in
person or by proxy, at a stockholders meeting of the holders of shares of outstanding capital stock of the Corporation representing
a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting shall
constitute a quorum for the transaction of business at such meeting, except that when specified business is to be voted on by a
class or series of stock voting as a class, the holders of shares representing a majority of the voting power of the outstanding
shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. If a quorum
shall not be present or represented by proxy at any meeting of the stockholders of the Corporation, the chairman of the meeting
may adjourn the meeting from time to time in the manner provided in Section 2.6 until a quorum shall attend.
The stockholders present at a duly convened meeting may continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation or to another corporation,
if a majority of the voting power of the shares entitled to vote in the election of directors of such other corporation is held,
directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however,
that the foregoing shall not limit the right of the Corporation or any such other corporation to vote shares held by it in a fiduciary
capacity.
Section 2.5. Voting of Shares.
(a) Voting Lists.
The Secretary of the Corporation (the “Secretary”) shall prepare, or shall cause the officer or agent
who has charge of the stock ledger of the Corporation to prepare and make, at least 10 days before every meeting of stockholders,
a complete list of the stockholders of record entitled to vote at such meeting; provided, however, that if the record date for
determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders
entitled to vote as of the tenth day before the meeting date, arranged in alphabetical order and showing the address and the number
and class of shares registered in the name of each stockholder. Nothing contained in this Section 2.5(a) shall require
the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at
least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at
the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on
an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders
of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If a meeting of stockholders
is to be held solely by means of remote communication as permitted by Section 9.5(a), the list shall be open to the examination
of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required
to access such list shall be provided with the notice of meeting. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the list required by this Section 2.5(a) or to vote in person or by proxy at any
meeting of stockholders.
(b) Manner of
Voting. At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized by the
Board, the voting by stockholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot
submitted by electronic transmission (as defined in Section 9.3), provided that any such electronic transmission
must either set forth or be submitted with information from which the Corporation can determine that the electronic transmission
was authorized by the stockholder or proxy holder. The Board, in its discretion, or the chairman of the meeting of stockholders,
in such person’s discretion, may require that any votes cast at such meeting shall be cast by written ballot.
(c) Proxies.
Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the
Secretary until the meeting is called to order, but shall be filed with the Secretary before being voted. Without limiting the
manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, either of the following
shall constitute a valid means by which a stockholder may grant such authority. No stockholder shall have cumulative voting rights.
(i) A stockholder may
execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by
the stockholder or such stockholder’s authorized officer, director, employee or agent signing such writing or causing such
person’s signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature.
(ii) A stockholder may
authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an
electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided
that any such electronic transmission must either set forth or be submitted with information from which it can be determined that
the electronic transmission was authorized by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction
of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used
in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be
used; provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire
original writing or transmission.
(d) Required Vote.
Subject to the rights of the holders of one or more series of Preferred Stock, voting separately by class or series, to elect directors
pursuant to the terms of one or more series of Preferred Stock, at all meetings of stockholders at which a quorum is present, the
election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented
by proxy at the meeting and entitled to vote thereon. All other matters presented to the stockholders at a meeting at which a quorum
is present shall be determined by the vote of a majority of the votes cast by the stockholders present in person or represented
by proxy at the meeting and entitled to vote thereon, unless the matter is one upon which, by applicable law, the Certificate of
Incorporation, these By Laws or applicable stock exchange rules, a different vote is required, in which case such provision shall
govern and control the decision of such matter.
(e) Inspectors
of Election. The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons
as inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act
at such meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board may appoint one or more
persons as alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed
by the Board, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging
his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according
to the best of his or her ability. The inspectors shall ascertain and report the number of outstanding shares and the voting power
of each; determine the number of shares present in person or represented by proxy at the meeting and the validity of proxies and
ballots; count all votes and ballots and report the results; determine and retain for a reasonable period a record of the disposition
of any challenges made to any determination by the inspectors; and certify their determination of the number of shares represented
at the meeting and their count of all votes and ballots. No person who is a candidate for an office at an election may serve as
an inspector at such election. Each report of an inspector shall be in writing and signed by the inspector or by a majority of
them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors.
Section 2.6. Adjournments.
Any meeting of stockholders, annual or special, may be adjourned by the chairman of the meeting, from time to time, whether or
not there is a quorum, to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if
the date, time, and place, if any, thereof, and the means of remote communication, 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 stockholders, or the holders of any class or series of stock entitled to vote separately
as a class, as the case may be, may transact any business that might have been transacted at the original meeting. If the adjournment
is for more than 30 days, 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 stockholders entitled to vote is fixed for the adjourned meeting, the
Board shall fix a new record date for notice of such adjourned meeting in accordance with Section 9.2, and shall give notice
of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for
notice of such adjourned meeting.
Section 2.7. Advance Notice for Business.
(a) Annual Meetings
of Stockholders. No business may be transacted at an annual meeting of stockholders, other than business that is either (i) specified
in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii) otherwise
properly brought before the annual meeting by or at the direction of the Board or (iii) otherwise properly brought before
the annual meeting by any stockholder of the Corporation (x) who is a stockholder of record entitled to vote at such annual
meeting on the date of the giving of the notice provided for in this Section 2.7(a) and on the record date
for the determination of stockholders entitled to vote at such annual meeting and (y) who complies with the notice procedures
set forth in this Section 2.7(a). Notwithstanding anything in this Section 2.7(a) to the
contrary, only persons nominated for election as a director to fill any term of a directorship that expires on the date of the
annual meeting pursuant to Section 3.2 will be considered for election at such meeting.
(i) In addition to any
other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting by a stockholder,
such stockholder must have given timely notice thereof in proper written form to the Secretary and such business must otherwise
be a proper matter for stockholder action. Subject to Section 2.7(a)(iii), a stockholder’s notice to the
Secretary with respect to such business, to be timely, must be received by the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 90th day nor earlier than the close of business on the 120th day before
the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the
annual meeting is more than 30 days before or more than 60 days after such anniversary date (or if there has been no prior
annual meeting), notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th
day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the
close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first made
by the Corporation. The public announcement of an adjournment or postponement of an annual meeting shall not commence a new time
period (or extend any time period) for the giving of a stockholder’s notice as described in this Section 2.7(a).
(ii) To be in proper
written form, a stockholder’s notice to the Secretary with respect to any business (other than nominations) must set forth
as to each such matter such stockholder proposes to bring before the annual meeting (A) a brief description of the business
desired to be brought before the annual meeting, the text of the proposal or business (including the text of any resolutions proposed
for consideration and in the event such business includes a proposal to amend these By Laws, the language of the proposed amendment)
and the reasons for conducting such business at the annual meeting, (B) the name and record address of such stockholder and
the name and address of the beneficial owner, if any, on whose behalf the proposal is made, (C) the class or series and number
of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and by the beneficial
owner, if any, on whose behalf the proposal is made, (D) a description of all arrangements or understandings between such
stockholder and the beneficial owner, if any, on whose behalf the proposal is made and any other person or persons (including their
names) in connection with the proposal of such business by such stockholder, (E) any material interest of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made in such business and (F) a representation that such
stockholder (or a qualified representative of such stockholder) intends to appear in person or by proxy at the annual meeting to
bring such business before the meeting.
(iii) The foregoing notice
requirements of this Section 2.7(a) shall be deemed satisfied by a stockholder as to any proposal (other
than nominations) if the stockholder has notified the Corporation of such stockholder’s intention to present such proposal
at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and such stockholder has complied with the requirements of such Rule for inclusion
of such proposal in a proxy statement prepared by the Corporation to solicit proxies for such annual meeting. No business shall
be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures
set forth in this Section 2.7(a), provided, however, that once business has been properly brought before the annual
meeting in accordance with such procedures, nothing in this Section 2.7(a) shall be deemed to preclude discussion
by any stockholder of any such business. If the Board or the chairman of the annual meeting determines that any stockholder proposal
was not made in accordance with the provisions of this Section 2.7(a) or that the information provided in
a stockholder’s notice does not satisfy the information requirements of this Section 2.7(a), such proposal shall
not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this Section 2.7(a),
if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of
the Corporation to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies
in respect of such matter may have been received by the Corporation.
(iv) In addition to the
provisions of this Section 2.7(a), a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 2.7(a) 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 Exchange Act.
(b) Special Meetings
of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made
at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting
only pursuant to Section 3.2.
(c) Public Announcement.
For purposes of these By Laws, “public announcement” shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed or furnished
by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act (or
any successor thereto).
Section 2.8. Conduct
of Meetings. The chairman of each annual and special meeting of stockholders shall be the Chairman of the Board or, in the
absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director)
or, in the absence (or inability or refusal to act of the Chief Executive Officer or if the Chief Executive Officer is not a director,
the President (if he or she shall be a director) or, in the absence (or inability or refusal to act) of the President or if the
President is not a director, such other person as shall be appointed by the Board. The date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairman
of the meeting. The Board may adopt such rules and regulations for the conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with these By Laws or such rules and regulations as adopted by the Board, the chairman
of any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct
of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairman of the meeting,
may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules
and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation
in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons
as the chairman of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement
thereof; and (e) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined
by the Board or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules
of parliamentary procedure. The secretary of each annual and special meeting of stockholders shall be the Secretary or, in the
absence (or inability or refusal to act) of the Secretary, an Assistant Secretary so appointed to act by the chairman of the meeting.
In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section 2.9. Consents
in Lieu of Meeting. Unless otherwise provided by the Certificate of Incorporation, until the Corporation consummates an
initial public offering (“Offering”), any action required to be taken at any annual or special meeting
of stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a
meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by
the holders of outstanding stock entitled to vote thereon having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and shall be
delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or
an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt
requested.
Every
written consent shall bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective
to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner
required by this section and the DGCL to the Corporation, written consents signed by a sufficient number of holders entitled to
vote to take action are delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business
or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt
requested.
ARTICLE III
DIRECTORS
Section 3.1. Powers;
Number. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise
all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation
or by these By Laws required to be exercised or done by the stockholders. Directors need not be stockholders or residents of the
State of Delaware. Subject to the Certificate of Incorporation, the number of directors shall be fixed exclusively by resolution
of the Board.
Section 3.2. Advance Notice for Nomination
of Directors.
(a) Only persons who are
nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as
may be otherwise provided by the terms of one or more series of Preferred Stock with respect to the rights of holders of one or
more series of Preferred Stock to elect directors. Nominations of persons for election to the Board at any annual meeting of stockholders,
or at any special meeting of stockholders called for the purpose of electing directors as set forth in the Corporation’s
notice of such special meeting, may be made (i) by or at the direction of the Board or (ii) by any stockholder of the
Corporation (x) who is a stockholder of record entitled to vote in the election of directors on the date of the giving of
the notice provided for in this Section 3.2 and on the record date for the determination of stockholders
entitled to vote at such meeting and (y) who complies with the notice procedures set forth in this Section 3.2.
(b) In addition to any
other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary. To be timely, a stockholder’s notice to the Secretary must be received by the Secretary
at the principal executive offices of the Corporation (i) in the case of an annual meeting, not later than the close of business
on the 90th day nor earlier than the close of business on the 120th day before the anniversary date of the immediately preceding
annual meeting of stockholders; provided, however, that in the event that the annual meeting is more than 30 days before or
more than 60 days after such anniversary date (or if there has been no prior annual meeting), notice by the stockholder to be timely
must be so received not earlier than the close of business on the 120th day before the meeting and not later than the later of
(x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the
day on which public announcement of the date of the annual meeting was first made by the Corporation; and (ii) in the case
of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the
10th day following the day on which public announcement of the date of the special meeting is first made by the Corporation. In
no event shall the public announcement of an adjournment or postponement of an annual meeting or special meeting commence a new
time period (or extend any time period) for the giving of a stockholder’s notice as described in this Section 3.2.
(c) Notwithstanding anything
in paragraph (b) to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting
is greater than the number of directors whose terms expire on the date of the annual meeting and there is no public announcement
by the Corporation naming all of the nominees for the additional directors to be elected or specifying the size of the increased
Board before the close of business on the 90th day prior to the anniversary date of the immediately preceding annual meeting of
stockholders, a stockholder’s notice required by this Section 3.2 shall also be considered timely,
but only with respect to nominees for the additional directorships created by such increase that are to be filled by election at
such annual meeting, if it shall be received by the Secretary at the principal executive offices of the Corporation not later than
the close of business on the 10th day following the date on which such public announcement was first made by the Corporation.
(d) To be in proper written
form, a stockholder’s notice to the Secretary must set forth (i) as to each person whom the stockholder proposes to
nominate for election as a director (A) the name, age, business address and residence address of the person, (B) the
principal occupation or employment of the person, (C) the class or series and number of shares of capital stock of the Corporation
that are owned beneficially or of record by the person and (D) any other information relating to the person that would be
required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies
for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder;
and (ii) as to the stockholder giving the notice (A) the name and record address of such stockholder as they appear on
the Corporation’s books and the name and address of the beneficial owner, if any, on whose behalf the nomination is made,
(B) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record
by such stockholder and the beneficial owner, if any, on whose behalf the nomination is made, (C) a description of all arrangements
or understandings relating to the nomination to be made by such stockholder among such stockholder, the beneficial owner, if any,
on whose behalf the nomination is made, each proposed nominee and any other person or persons (including their names), (D) a
representation that such stockholder (or a qualified representative of such stockholder) intends to appear in person or by proxy
at the meeting to nominate the persons named in its notice and (E) any other information relating to such stockholder and
the beneficial owner, if any, on whose behalf the nomination is made that would be required to be disclosed in a proxy statement
or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14
of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent
of each proposed nominee to being named as a nominee and to serve as a director if elected.
(e) If the Board or the
chairman of the meeting of stockholders determines that any nomination was not made in accordance with the provisions of this Section 3.2,
or that the information provided in a stockholder’s notice does not satisfy the information requirements of this Section
3.2, then such nomination shall not be considered at the meeting in question. Notwithstanding the foregoing provisions of this Section 3.2,
if the stockholder (or a qualified representative of the stockholder) does not appear at the meeting of stockholders of the Corporation
to present the nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may
have been received by the Corporation.
(f) In addition to the
provisions of this Section 3.2, a stockholder shall also comply with all of the applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 3.2 shall
be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the Certificate of Incorporation.
Section 3.3. Compensation.
Unless otherwise restricted by the Certificate of Incorporation or these By Laws, the Board shall have the authority to fix the
compensation of directors, including for service on a committee of the Board, and may be paid either a fixed sum for attendance
at each meeting of the Board or other compensation as director. The directors may be reimbursed their expenses, if any, of attendance
at each meeting of the Board. No such payment shall preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of committees of the Board may be allowed like compensation and reimbursement of expenses
for service on the committee.
ARTICLE IV
BOARD MEETINGS
Section 4.1. Annual
Meetings. The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place
of the annual stockholders meeting unless the Board shall fix another time and place and give notice thereof in the manner required
herein for special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except
as provided in this Section 4.1.
Section 4.2. Regular
Meetings. Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places (within
or without the State of Delaware) as shall from time to time be determined by the Board.
Section 4.3. Special
Meetings. Special meetings of the Board (a) may be called by the Chairman of the Board, Chief Executive Officer, and (b) shall
be called by the Chairman of the Board, Chief Executive Officer or Secretary on the written request of at least a majority of directors
then in office, or the sole director, as the case may be, and shall be held at such time, date and place (within or without the
State of Delaware) as may be determined by the person calling the meeting or, if called upon the request of directors or the sole
director, as specified in such written request. Notice of each special meeting of the Board shall be given, as provided in Section 9.3,
to each director (i) at least 24 hours before the meeting if such notice is oral notice given personally or by telephone or
written notice given by hand delivery or by means of a form of electronic transmission and delivery; (ii) at least two days
before the meeting if such notice is sent by a nationally recognized overnight delivery service; and (iii) at least five days
before the meeting if such notice is sent through the United States mail. If the Secretary shall fail or refuse to give such notice,
then the notice may be given by the officer who called the meeting or the directors who requested the meeting. Any and all business
that may be transacted at a regular meeting of the Board may be transacted at a special meeting. Except as may be otherwise expressly
provided by applicable law, the Certificate of Incorporation, or these By Laws, neither the business to be transacted at, nor the
purpose of, any special meeting need be specified in the notice or waiver of notice of such meeting. A special meeting may be held
at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with
Section 9.4.
Section 4.4. Quorum;
Required Vote. A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board,
and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except
as may be otherwise specifically provided by applicable law, the Certificate of Incorporation or these By Laws. If a quorum shall
not be present at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present.
Section 4.5. Consent
In Lieu of Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By Laws, any action required or
permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all members of the
Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or
electronic transmission or transmissions (or paper reproductions thereof) are filed with the minutes of proceedings of the Board
or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if
the minutes are maintained in electronic form.
Section 4.6. Organization.
The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence (or inability or refusal to act)
of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or
refusal to act) of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she
shall be a director) or in the absence (or inability or refusal to act) of the President or if the President is not a director,
a chairman elected from the directors present. The Secretary shall act as secretary of all meetings of the Board. In the absence
(or inability or refusal to act) of the Secretary, an Assistant Secretary shall perform the duties of the Secretary at such meeting.
In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
Section 5.1. Establishment.
The Board may by resolution of the Board designate one or more committees, each committee to consist of one or more of the directors
of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when required by
the resolution designating such committee. The Board shall have the power at any time to fill vacancies in, to change the membership
of, or to dissolve any such committee.
Section 5.2. Available
Powers. Any committee established pursuant to Section 5.1 hereof, to the extent permitted by applicable
law and by resolution of the Board, shall have and may exercise all of the powers and authority of the Board 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 that
may require it.
Section 5.3. Alternate
Members. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee. In the absence or disqualification of a member of the committee, the member
or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum,
may unanimously appoint another member of the Board to act at the meeting in place of any such absent or disqualified member.
Section 5.4. Procedures.
Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by
such committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate
member, unless such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such
meeting) shall constitute a quorum for the transaction of business. The act of a majority of the members present at any meeting
at which a quorum is present shall be the act of the committee, except as otherwise specifically provided by applicable law, the
Certificate of Incorporation, these By Laws or the Board. If a quorum is not present at a meeting of a committee, the members present
may adjourn the meeting from time to time, without notice other than an announcement at the meeting, until a quorum is present.
Unless the Board otherwise provides and except as provided in these By Laws, each committee designated by the Board may make, alter,
amend and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business
in the same manner as the Board is authorized to conduct its business pursuant to Article III and Article IV
of these By Laws.
ARTICLE VI
OFFICERS
Section 6.1. Officers.
The officers of the Corporation elected by the Board shall be a Chief Executive Officer, a Chief Financial Officer, a Secretary
and such other officers (including without limitation, a Chairman of the Board, Presidents, Vice Presidents, Assistant Secretaries
and a Treasurer) as the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties
as generally pertain to their respective offices, subject to the specific provisions of this Article VI. Such
officers shall also have such powers and duties as from time to time may be conferred by the Board. The Chief Executive Officer
or President may also appoint such other officers (including without limitation one or more Vice Presidents and Controllers) as
may be necessary or desirable for the conduct of the business of the Corporation. Such other officers shall have such powers and
duties and shall hold their offices for such terms as may be provided in these By Laws or as may be prescribed by the Board or,
if such officer has been appointed by the Chief Executive Officer or President, as may be prescribed by the appointing officer.
(a) Chairman of
the Board. The Chairman of the Board shall preside when present at all meetings of the stockholders and the Board. The Chairman
of the Board shall have general supervision and control of the acquisition activities of the Corporation subject to the ultimate
authority of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters. In
the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a
director) shall preside when present at all meetings of the stockholders and the Board. The powers and duties of the Chairman of
the Board shall not include supervision or control of the preparation of the financial statements of the Corporation (other than
through participation as a member of the Board). The position of Chairman of the Board and Chief Executive Officer may be held
by the same person.
(b) Chief Executive
Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision
of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board, and
shall be responsible for the execution of the policies of the Board with respect to such matters, except to the extent any such
powers and duties have been prescribed to the Chairman of the Board pursuant to Section 6.1(a) above. In
the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a
director) shall preside when present at all meetings of the stockholders and the Board. The position of Chief Executive Officer
and President may be held by the same person.
(c) President.
The President shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved
for the final executive responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairman
of the Board and Chief Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings
of the stockholders and the Board. The President shall also perform such duties and have such powers as shall be designated by
the Board. The position of President and Chief Executive Officer may be held by the same person.
(d) Vice Presidents.
In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President.
Any one or more of the Vice Presidents may be given an additional designation of rank or function.
(e) Secretary.
(i) The Secretary shall
attend all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings of
such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chairman
of the Board, Chief Executive Officer or President. The Secretary shall have custody of the corporate seal of the Corporation and
the Secretary, or any Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed,
it may be attested by his or her signature or by the signature of such Assistant Secretary. The Board may give general authority
to any other officer to affix the seal of the Corporation and to attest the affixing thereof by his or her signature.
(ii) The Secretary shall
keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s transfer
agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders
and their addresses, the number and classes of shares held by each and, with respect to certificated shares, the number and date
of certificates issued for the same and the number and date of certificates cancelled.
(f) Assistant
Secretaries. The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the
Board shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g) Chief Financial
Officer. The Chief Financial Officer shall perform all duties commonly incident to that office (including, without limitation,
the care and custody of the funds and securities of the Corporation, which from time to time may come into the Chief Financial
Officer’s hands and the deposit of the funds of the Corporation in such banks or trust companies as the Board, the Chief
Executive Officer or the President may authorize).
(h) Treasurer.
The Treasurer shall, in the absence (or inability or refusal to act) of the Chief Financial Officer, perform the duties and exercise
the powers of the Chief Financial Officer.
Section 6.2. Term
of Office; Removal; Vacancies. The elected officers of the Corporation shall be appointed by the Board and shall hold office
until their successors are duly elected and qualified by the Board or until their earlier death, resignation, retirement, disqualification,
or removal from office. Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by the
Chief Executive Officer or President may also be removed, with or without cause, by the Chief Executive Officer or President, as
the case may be, unless the Board otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled
by the Board. Any vacancy occurring in any office appointed by the Chief Executive Officer or President may be filled by the Chief
Executive Officer, or President, as the case may be, unless the Board then determines that such office shall thereupon be elected
by the Board, in which case the Board shall elect such officer.
Section 6.3. Other
Officers. The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and
agents or delegate the power to remove same, as it shall from time to time deem necessary or desirable.
Section 6.4. Multiple
Officeholders; Stockholder and Director Officers. Any number of offices may be held by the same person unless the Certificate
of Incorporation or these By Laws otherwise provide. Officers need not be stockholders or residents of the State of Delaware.
ARTICLE VII
SHARES
Section 7.1. Certificated
and Uncertificated Shares. The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion
of the Board and the requirements of the DGCL.
Section 7.2. Multiple
Classes of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any
class, the Corporation shall (a) cause the powers, designations, preferences and relative, participating, optional or other
special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences
and/or rights to be set forth in full or summarized on the face or back of any certificate that the Corporation issues to represent
shares of such class or series of stock or (b) in the case of uncertificated shares, within a reasonable time after the issuance
or transfer of such shares, send to the registered owner thereof a written notice containing the information required to be set
forth on certificates as specified in clause (a) above; provided, however, that, except as otherwise provided by applicable
law, in lieu of the foregoing requirements, there may be set forth on the face or back of such certificate or, in the case of uncertificated
shares, on such written notice a statement that the Corporation will furnish without charge to each stockholder who so requests
the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences or rights.
Section 7.3. Signatures.
Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by (a) the
Chairman of the Board, Chief Executive Officer, the President or a Vice President and (b) the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Corporation. Any or all the signatures on the certificate may be a facsimile. In
case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by
the Corporation with the same effect as if such person were such officer, transfer agent or registrar on the date of issue.
Section 7.4. Consideration and Payment
for Shares.
(a) Subject to applicable
law and the Certificate of Incorporation, shares of stock may be issued for such consideration, having in the case of shares with
par value a value not less than the par value thereof, and to such persons, as determined from time to time by the Board. The consideration
may consist of any tangible or intangible property or any benefit to the Corporation including cash, promissory notes, services
performed, contracts for services to be performed or other securities, or any combination thereof.
(b) Subject to applicable
law and the Certificate of Incorporation, shares may not be issued until the full amount of the consideration has been paid, unless
upon the face or back of each certificate issued to represent any partly paid shares of capital stock or upon the books and records
of the Corporation in the case of partly paid uncertificated shares, there shall have been set forth the total amount of the consideration
to be paid therefor and the amount paid thereon up to and including the time said certificate representing certificated shares
or said uncertificated shares are issued.
Section 7.5. Lost, Destroyed or Wrongfully
Taken Certificates.
(a) If an owner of a certificate
representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation shall issue a new
certificate representing such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate
before the Corporation has notice that the certificate representing such shares has been acquired by a protected purchaser; (ii) if
requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim that
may be made against the Corporation on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance
of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.
(b) If a certificate representing
shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation of that fact within
a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation registers
a transfer of such shares before receiving notification, the owner shall be precluded from asserting against the Corporation any
claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.
Section 7.6. Transfer of Stock.
(a) If a certificate representing
shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of transfer of such shares
or an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares, the Corporation
shall register the transfer as requested if:
(i) in the case of certificated
shares, the certificate representing such shares has been surrendered;
(ii) (A) with respect
to certificated shares, the endorsement is made by the person specified by the certificate as entitled to such shares; (B) with
respect to uncertificated shares, an instruction is made by the registered owner of such uncertificated shares; or (C) with
respect to certificated shares or uncertificated shares, the endorsement or instruction is made by any other appropriate person
or by an agent who has actual authority to act on behalf of the appropriate person;
(iii) the Corporation
has received a guarantee of signature of the person signing such endorsement or instruction or such other reasonable assurance
that the endorsement or instruction is genuine and authorized as the Corporation may request;
(iv) the transfer does
not violate any restriction on transfer imposed by the Corporation that is enforceable in accordance with Section 7.8(a);
and
(v) such other conditions
for such transfer as shall be provided for under applicable law have been satisfied.
(b) Whenever any transfer
of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry of transfer
if, when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated, when
the instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request
the Corporation to do so.
Section 7.7. Registered
Stockholders. Before due presentment for registration of transfer of a certificate representing shares of the Corporation or
of an instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner
as the person exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation,
vote such shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers
of the owner of such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a
nominee on behalf of such person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying
such other conditions as are provided under applicable law, may also so inspect the books and records of the Corporation.
Section 7.8. Effect
of the Corporation’s Restriction on Transfer.
(a) A written restriction
on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the Corporation that may
be owned by any person or group of persons, if permitted by the DGCL and noted conspicuously on the certificate representing such
shares or, in the case of uncertificated shares, contained in a notice, offering circular or prospectus sent by the Corporation
to the registered owner of such shares within a reasonable time prior to or after the issuance or transfer of such shares, may
be enforced against the holder of such shares or any successor or transferee of the holder including an executor, administrator,
trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of the holder.
(b) A restriction imposed
by the Corporation on the transfer or the registration of shares of the Corporation or on the amount of shares of the Corporation
that may be owned by any person or group of persons, even if otherwise lawful, is ineffective against a person without actual knowledge
of such restriction unless: (i) the shares are certificated and such restriction is noted conspicuously on the certificate;
or (ii) the shares are uncertificated and such restriction was contained in a notice, offering circular or prospectus sent
by the Corporation to the registered owner of such shares within a reasonable time prior to or after the issuance or transfer of
such shares.
Section 7.9. Regulations.
The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of
law, as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares
of stock or certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for
the validity thereof that certificates representing shares bear the signature of any transfer agent or registrar so appointed.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Right
to Indemnification. To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the
Corporation shall indemnify and hold harmless each person who was or is made a party or is threatened to be made a party to or
is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director
or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or
nonprofit entity, including service with respect to an employee benefit plan (hereinafter an “Indemnitee”),
whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in
any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses
(including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement)
reasonably incurred by such Indemnitee in connection with such proceeding; provided, however, that, except as provided in Section 8.3 with
respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify an Indemnitee in connection with a
proceeding (or part thereof) initiated by such Indemnitee only if such proceeding (or part thereof) was authorized by the Board.
Section 8.2. Right
to Advancement of Expenses. In addition to the right to indemnification conferred in Section 8.1, an Indemnitee
shall also have the right to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including,
without limitation, attorneys’ fees) incurred in defending or otherwise participating in any such proceeding in advance of
its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the DGCL
requires, an advancement of expenses incurred by an Indemnitee in his or her capacity as a director or officer of the Corporation
(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 the Corporation’s receipt 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 that such Indemnitee
is not entitled to be indemnified under this Article VIII or otherwise.
Section 8.3. Right
of Indemnitee to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not
paid in full by the Corporation within 60 days after a written claim therefor has been received by the Corporation, except
in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee
may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole
or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the Indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. In (a) any
suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by an Indemnitee to enforce
a right to an advancement of expenses) it shall be a defense that, and (b) in any suit brought by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses
upon a final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”)
that, the Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the
Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel,
or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee
is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an
actual determination by the Corporation (including a determination by its directors who are not parties to such action, a committee
of such directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such
a suit brought by the Indemnitee, shall be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement
of expenses, under this Article VIII or otherwise shall be on the Corporation.
Section 8.4. Non-Exclusivity
of Rights. The rights provided to any Indemnitee pursuant to this Article VIII shall not be exclusive
of any other right, which such Indemnitee may have or hereafter acquire under applicable law, the Certificate of Incorporation,
these By Laws, an agreement, a vote of stockholders or disinterested directors, or otherwise.
Section 8.5. Insurance.
The Corporation may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the
DGCL.
Section 8.6. Indemnification
of Other Persons. This Article VIII shall not limit the right of the Corporation to the extent and in
the manner authorized or permitted by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting
the foregoing, the Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification and
to the advancement of expenses to any employee or agent of the Corporation and to any other person who is or was serving at the
request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an employee benefit plan, to the fullest extent of the provisions
of this Article VIII with respect to the indemnification and advancement of expenses of Indemnitees under
this Article VIII.
Section 8.7. Amendments.
Any repeal or amendment of this Article VIII by the Board or the stockholders of the Corporation or by changes
in applicable law, or the adoption of any other provision of these By Laws inconsistent with this Article VIII,
will, to the extent permitted by applicable law, be prospective only (except to the extent such amendment or change in applicable
law permits the Corporation to provide broader indemnification rights to Indemnitees on a retroactive basis than permitted prior
thereto), and will not in any way diminish or adversely affect any right or protection existing hereunder in respect of any act
or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision; provided however, that amendments
or repeals of this Article VIII shall require the affirmative vote of the stockholders holding at least 66.7% of the voting
power of all outstanding shares of capital stock of the Corporation.
Section 8.8. Certain
Definitions. For purposes of this Article VIII, (a) references to “other enterprise”
shall include any employee benefit plan; (b) references to “fines” shall include any excise taxes
assessed on a person with respect to an employee benefit plan; (c) references to “serving at the request of the
Corporation” shall include any service that imposes duties on, or involves services by, a person with respect to
any employee benefit plan, its participants, or beneficiaries; and (d) 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 interest of the Corporation” for purposes of Section 145 of
the DGCL.
Section 8.9. Contract
Rights. The rights provided to Indemnitees pursuant to this Article VIII shall be contract rights and such
rights shall continue as to an Indemnitee who has ceased to be a director, officer, agent or employee and shall inure to the benefit
of the Indemnitee’s heirs, executors and administrators.
Section 8.10.
Severability. If any provision or provisions of this Article VIII shall be held to be invalid, illegal
or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Article VIII shall
not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VIII (including,
without limitation, each such portion of this Article VIII containing any such provision held to be invalid, illegal
or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Place
of Meetings. If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required
under these By Laws is not designated in the notice of such meeting, such meeting shall be held at the principal business office
of the Corporation; provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at
any place, but instead shall be held by means of remote communication pursuant to Section 9.5 hereof, then
such meeting shall not be held at any place.
Section 9.2. 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
may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board,
and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board 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
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, the record date for determining stockholders entitled to notice
of and to vote at a meeting of stockholders shall be at the close of business on the business day next preceding the day on which
notice is given, or, if notice is waived, at the close of business on the business 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 may fix a new record date for 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 with the foregoing provisions of this Section
9.2(a) 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 may fix a record date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date shall be not more than 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 adopts the resolution relating thereto.
Section 9.3. Means of Giving Notice.
(a) Notice to
Directors. Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be given
to any director, such notice shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery
service, (ii) by means of facsimile telecommunication or other form of electronic transmission, or (iii) by oral notice
given personally or by telephone. A notice to a director will be deemed given as follows: (i) if given by hand delivery, orally,
or by telephone, when actually received by the director, (ii) if sent through the United States mail, when deposited in the
United States mail, with postage and fees thereon prepaid, addressed to the director at the director’s address appearing
on the records of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service,
when deposited with such service, with fees thereon prepaid, addressed to the director at the director’s address appearing
on the records of the Corporation, (iv) if sent by facsimile telecommunication, when sent to the facsimile transmission number
for such director appearing on the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic
mail address for such director appearing on the records of the Corporation, or (vi) if sent by any other form of electronic
transmission, when sent to the address, location or number (as applicable) for such director appearing on the records of the Corporation.
(b) Notice to
Stockholders. Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be given
to any stockholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail,
or by a nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission
consented to by the stockholder, to the extent permitted by, and subject to the conditions set forth in Section 232 of the
DGCL. A notice to a stockholder shall be deemed given as follows: (i) if given by hand delivery, when actually received by
the stockholder, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees
thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the Corporation,
(iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service,
with fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the
Corporation, and (iv) if given by a form of electronic transmission consented to by the stockholder to whom the notice is
given and otherwise meeting the requirements set forth above, (A) if by facsimile transmission, when directed to a number
at which the stockholder has consented to receive notice, (B) if by electronic mail, when directed to an electronic mail address
at which the stockholder has consented to receive notice, (C) if by a posting on an electronic network together with separate
notice to the stockholder of such specified posting, upon the later of (1) such posting and (2) the giving of such separate
notice, and (D) if by any other form of electronic transmission, when directed to the stockholder. A stockholder may revoke
such stockholder’s consent to receiving notice by means of electronic communication by giving written notice of such revocation
to the Corporation. Any such consent shall be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission
two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the
Secretary or an Assistant Secretary or to the Corporation’s transfer agent, or other person responsible for the giving of
notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or
other action.
(c) Electronic
Transmission. “Electronic transmission” means any form of communication, not directly involving the
physical transmission of paper, 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, including but not limited to transmission
by telex, facsimile telecommunication, electronic mail, telegram and cablegram.
(d) Notice to
Stockholders Sharing Same Address. Without limiting the manner by which notice otherwise may be given effectively by the Corporation
to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation
or these By Laws 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. A stockholder may revoke such stockholder’s consent by delivering
written notice of such revocation to the Corporation. Any stockholder who fails to object in writing to the Corporation within
60 days of having been given written notice by the Corporation of its intention to send such a single written notice shall
be deemed to have consented to receiving such single written notice.
(e) Exceptions
to Notice Requirements. Whenever notice is required to be given, under the DGCL, the Certificate of Incorporation or these
By Laws, 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 that 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 with the Secretary of State of Delaware, 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.
Whenever notice is required to be given by
the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these By Laws, to any stockholder to whom
(1) notice of two consecutive annual meetings of stockholders and all notices of stockholder meetings or of the taking of
action by written consent of stockholders without a meeting to such stockholder during the period between such two consecutive
annual meetings, or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on securities
during a 12-month period, have been mailed addressed to such stockholder at such stockholder’s address as shown on the records
of the Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not be required. Any
action or meeting that shall be taken or held without notice to such stockholder shall have the same force and effect as if such
notice had been duly given. If any such stockholder shall deliver to the Corporation a written notice setting forth such stockholder’s
then current address, the requirement that notice be given to such stockholder shall be reinstated. In the event that the action
taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate
need not state that notice was not given to persons to whom notice was not required to be given pursuant to Section 230(b)
of the DGCL. The exception in subsection (1) of the first sentence of this paragraph to the requirement that notice be given
shall not be applicable to any notice returned as undeliverable if the notice was given by electronic transmission.
Section 9.4. Waiver
of Notice. Whenever any notice is required to be given under applicable law, the Certificate of Incorporation, or these By
Laws, a written waiver of such notice, signed by the person or persons entitled to said notice, or a waiver by electronic transmission
by the person entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such required
notice. All such waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of
notice of such meeting, except where a person attends for the express purpose of objecting to the transaction of any business on
the ground that the meeting was not lawfully called or convened.
Section 9.5. Meeting Attendance via
Remote Communication Equipment.
(a) Stockholder
Meetings. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may
adopt, stockholders entitled to vote at such meeting and proxy holders not physically present at a meeting of stockholders may,
by means of remote communication:
(i) participate in a
meeting of stockholders; and
(ii) be deemed present
in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of
remote communication, provided that (A) the Corporation shall implement reasonable measures to verify that each person deemed
present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder, (B) the Corporation
shall implement reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to participate in the
meeting and, if entitled to vote, to vote on matters submitted to the applicable stockholders, including an opportunity to read
or hear the proceedings of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxy
holder votes or takes other action at the meeting by means of remote communication, a record of such votes or other action shall
be maintained by the Corporation.
(b) Board Meetings.
Unless otherwise restricted by applicable law, the Certificate of Incorporation or these By Laws, members of the Board or any committee
thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone or other communications
equipment by means of which all persons participating in the meeting can hear each other. Such participation in a meeting shall
constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting
to the transaction of any business on the ground that the meeting was not lawfully called or convened.
Section 9.6. Dividends.
The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s
capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Certificate of
Incorporation.
Section 9.7. Reserves.
The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose
and may abolish any such reserve.
Section 9.8. Contracts
and Negotiable Instruments. Except as otherwise provided by applicable law, the Certificate of Incorporation or these By Laws,
any contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the Corporation
by such officer or officers or other employee or employees of the Corporation as the Board may from time to time authorize. Such
authority may be general or confined to specific instances as the Board may determine. The Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, the Treasurer or any Vice President may execute and deliver any contract,
bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed
by the Board, the Chairman of the Board Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Vice
President may delegate powers to execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name
and on behalf of the Corporation to other officers or employees of the Corporation under such person’s supervision and authority,
it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to
the exercise of such delegated power.
Section 9.9. Fiscal
Year. The fiscal year of the Corporation shall be fixed by the Board.
Section 9.10.
Seal. The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing
it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 9.11.
Books and Records. 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.
Section 9.12.
Resignation. Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission
to the Chairman of the Board, the Chief Executive Officer, the President or the Secretary. The resignation shall take effect at
the time it is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening
of an event or events. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it
effective.
Section 9.13.
Surety Bonds. Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board, Chief Executive
Officer, President or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and
for the restoration to the Corporation, in case of their death, resignation, retirement, disqualification or removal from office,
of all books, papers, vouchers, money and other property of whatever kind in their possession or under their control belonging
to the Corporation, in such amounts and by such surety companies as the Chairman of the Board, Chief Executive Officer, President
or the Board may determine. The premiums on such bonds shall be paid by the Corporation and the bonds so furnished shall be in
the custody of the Secretary.
Section 9.14.
Securities of Other Corporations. Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other
instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by
the Chairman of the Board, Chief Executive Officer, President, any Vice President or any officers authorized by the Board. Any
such officer, may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable
to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities,
or to consent in writing, in the name of the Corporation as such holder, to any action by such corporation, and at any such meeting
or with respect to any such consent shall possess and may exercise any and all rights and power incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have exercised and possessed. The Board may from time to time
confer like powers upon any other person or persons.
Section 9.15.
Amendments. The Board shall have the power to adopt, amend, alter or repeal the By Laws. The affirmative vote of a majority
of the Board shall be required to adopt, amend, alter or repeal the By Laws. The By Laws also may be adopted, amended, altered
or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or series of capital
stock of the Corporation required by applicable law or the Certificate of Incorporation, the affirmative vote of the holders of
at least a majority of the voting power (except as otherwise provided in Section 8.7) of all outstanding shares of capital stock
of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required
for the stockholders to adopt, amend, alter or repeal the By Laws.
18
Exhibit 10.5
Mallard
Acquisition Corp.
19701
Bethel Church Road, Suite 302
Cornelius, NC 28031
February
26, 2020
Mallard
Founders Holdings LLC
19701
Bethel Church Road, Suite 302
Cornelius,
NC 28031
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RE:
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Securities
Subscription Agreement
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Ladies
and Gentlemen:
This
agreement (the “Agreement”) is entered into on February 26, 2020 by and between Mallard Founders Holdings LLC,
a Delaware limited liability company (the “Subscriber” or “you”), and Mallard Acquisition
Corp., a Delaware corporation (the “Company,” “we” or “us”). Pursuant to the
terms hereof, the Company hereby accepts the offer the Subscriber has made to purchase 2,875,000 shares of Class B common stock,
$0.0001 par value per share (the “Shares”), up to 375,000 of which are subject to forfeiture by you if the
underwriters of the initial public offering (“IPO”) of units (“Units”) of the Company, do
not fully exercise their over-allotment option (the “Over-allotment Option”). The Company and the Subscriber’s
agreements regarding such Shares are as follows:
1.
Purchase of Securities.
1.1.
Purchase of Shares. For the sum of $25,000 (the “Purchase Price”), which the Company acknowledges receiving
in cash, the Company hereby issues the Shares to the Subscriber, and the Subscriber hereby purchases the Shares from the Company,
subject to forfeiture, on the terms and subject to the conditions set forth in this Agreement. Concurrently with the Subscriber’s
execution of this Agreement, the Company shall, at its option, deliver to the Subscriber a certificate registered in the Subscriber’s
name representing the shares (the “Original Certificate”), or effect such delivery in book-entry form.
2.
Representations, Warranties and Agreements.
2.1.
Subscriber’s Representations Warranties and Agreements. To induce the Company to issue the Shares to the Subscriber,
the Subscriber hereby represents and warrants to the Company and agrees with the Company as follows:
2.1.1. No
Government Recommendation or Approval. The Subscriber understands that no federal or state agency has passed upon or made
any recommendation or endorsement of the offering of the Shares.
2.1.2. No
Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Subscriber of the
transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the formation and governing
documents of the Subscriber, (ii) any agreement, indenture or instrument to which the Subscriber is a party or (iii) any law,
statute, rule or regulation to which the Subscriber is subject, or any agreement, order, judgment or decree to which the
Subscriber is subject.
2.1.3. Organization
and Authority. The Subscriber is a Delaware limited liability company, validly existing and in good standing under the
laws of Delaware and possesses all requisite power and authority necessary to carry out the transactions contemplated by this
Agreement. Upon execution and delivery by you, this Agreement is a legal, valid and binding agreement of Subscriber,
enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally
and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in
equity).
2.1.4.
Experience, Financial Capability and Suitability. Subscriber is: (i) sophisticated in financial matters and is able to
evaluate the risks and benefits of the investment in the Shares and (ii) able to bear the economic risk of its investment in the
Shares for an indefinite period of time because the Shares have not been registered under the Securities Act (as defined below)
and therefore cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is
available. Subscriber is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect
its own interests. Subscriber must bear the economic risk of this investment until the Shares are sold pursuant to: (i) an effective
registration statement under the Securities Act or (ii) an exemption from registration available with respect to such sale. Subscriber
is able to bear the economic risks of an investment in the Shares and to afford a complete loss of Subscriber’s investment
in the Shares.
2.1.5.
Access to Information; Independent Investigation. Prior to the execution of this Agreement, the Subscriber has had the
opportunity to ask questions of and receive answers from representatives of the Company concerning an investment in the Company,
as well as the finances, operations, business and prospects of the Company, and the opportunity to obtain additional information
to verify the accuracy of all information so obtained. In determining whether to make this investment, Subscriber has relied solely
on Subscriber’s own knowledge and understanding of the Company and its business based upon Subscriber’s own due diligence
investigation and the information furnished pursuant to this paragraph. Subscriber understands that no person has been authorized
to give any information or to make any representations which were not furnished pursuant to this Section 2 and Subscriber has
not relied on any other representations or information in making its investment decision, whether written or oral, relating to
the Company, its operations and/or its prospects.
2.1.6.
Regulation D Offering. Subscriber represents that it is an “accredited investor” as such term is defined in
Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) and acknowledges the
sale contemplated hereby is being made in reliance on a private placement exemption to “accredited investors” within
the meaning of Section 501(a) of Regulation D under the Securities Act or similar exemptions under state law.
2.1.7.
Investment Purposes. The Subscriber is purchasing the Shares solely for investment purposes, for the Subscriber’s
own account and not for the account or benefit of any other person, and not with a view towards the distribution or dissemination
thereof. The Subscriber did not decide to enter into this Agreement as a result of any general solicitation or general advertising
within the meaning of Rule 502 under the Securities Act
2.1.8.
Restrictions on Transfer; Shell Company. Subscriber understands the Shares are being offered in a transaction not involving
a public offering within the meaning of the Securities Act. Subscriber understands the Shares will be “restricted securities”
within the meaning of Rule 144(aX3) under the Securities Act, and Subscriber understands that the certificates or book-entries
representing the Shares will contain a legend in respect of such restrictions. If in the future the Subscriber decides to offer,
resell, pledge or otherwise transfer the Shares, such Shares may be offered, resold, pledged or otherwise transferred only pursuant
to: (i) registration under the Securities Act, or (ii) an available exemption from registration. Subscriber agrees that if any
transfer of its Shares or any interest therein is proposed to be made, as a condition precedent to any such transfer, Subscriber
may be required to deliver to the Company an opinion of counsel satisfactory to the Company. Absent registration or an exemption,
the Subscriber agrees not to resell the Shares. Subscriber further acknowledges that because the Company is a shell company, Rule
144 may not be available to the Subscriber for the resale of the Shares until one year following consummation of the initial business
combination of the Company, despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual
transfer restrictions.
2.1.9.
No Governmental Consents. No governmental, administrative or other third party consents or approvals are required, necessary
or appropriate on the part of Subscriber in connection with the transactions contemplated by this Agreement.
2.2.
Company’s Representations, Warranties and Agreements. To induce the Subscriber to purchase the Shares, the Company
hereby represents and warrants to the Subscriber and agrees with the Subscriber as follows:
2.2.1.
Organization and Corporate Power. The Company is a Delaware corporation and is qualified to do business in every jurisdiction
in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition,
operating results or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry
out the transactions contemplated by this Agreement.
2.2.2. No
Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Company of the
transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the Certificate of
Incorporation or By Laws of the Company, (ii) any agreement, indenture or instrument to which the Company is a party or (iii)
any law, statute, rule or regulation to which the Company is subject, or any agreement, order, judgment or decree to which
the Company is subject.
2.2.3. Title
to Securities. Upon issuance in accordance with, and payment pursuant to, the terms hereof, the Shares will be duly and
validly issued, fully paid and nonassessable. Upon issuance in accordance with, and payment pursuant to, the terms hereof,
the Subscriber will have or receive good title to the Shares, free and clear of all liens, claims and encumbrances of any
kind, other than (a) transfer restrictions hereunder and other agreements to which the Shares may be subject which have been
notified to the Subscriber in writing, (b) transfer restrictions under federal and state securities laws, and (c) liens,
claims or encumbrances imposed due to the actions of the Subscriber.
2.2.4. No
Adverse Actions. There are no actions, suits, investigations or proceedings pending, threatened against or affecting the
Company which: (i) seek to restrain, enjoin, prevent the consummation of or otherwise affect the transactions contemplated by
this Agreement or (ii) question the validity or legality of any transactions or seeks to recover damages or to obtain other
relief in connection with any transactions.
3.
Forfeiture of Shares.
3.1.
Partial or No Exercise of the Over-allotment Option. In the event the Over-allotment Option granted to the underwriters
of the IPO is not exercised in full, the Subscriber acknowledges and agrees that it (or, if applicable, it and any transferees
of Shares) shall forfeit any and all rights to such number of Shares (up to an aggregate of 375,000 Shares and pro rata based
upon the percentage of the Over-allotment Option exercised) such that immediately following such forfeiture, the Subscriber (and
all other initial stockholders prior to the IPO, if any) will own an aggregate number of Shares, not including Shares issuable
upon exercise of any warrants or any Common Stock purchased by Subscriber in the IPO or in the aftermarket equal to 20% of the
issued and outstanding Shares immediately following the IPO.
3.2.
Termination of Rights as Stockholder. If any of the Shares are forfeited in accordance with this Section 3, then after
such time the Subscriber (or successor in interest), shall no longer have any rights as a holder of such forfeited Shares, and
the Company shall take such action as is appropriate to cancel such forfeited Shares.
3.3.
Share Certificates. In the event an adjustment to the Original Certificates, if any, is required pursuant to this Section
3, then the Subscriber shall return such Original Certificates to the Company or its designated agent as soon as practicable upon
its receipt of notice from the Company advising Subscriber of such adjustment, following which a new certificate (the “New
Certificate”), if any, shall be issued in such amount representing the adjusted number of Shares held by the Subscriber.
The New Certificate, if any, shall be returned to the Subscriber as soon as practicable. Any such adjustment for any uncertificated
securities held by the Subscriber shall be made in book-entry form.
4.
Waiver of Liquidation Distributions; Redemption Rights. In connection with the Shares purchased pursuant to this Agreement,
the Subscriber hereby waives any and all right, title, interest or claim of any kind in or to any distributions by the Company
from the trust account which will be established for the benefit of the Company’s public stockholders and into which substantially
all of the proceeds of the IPO will be deposited (the “Trust Account”), in the event of a liquidation of the
Company upon the Company’s failure to timely complete an initial business combination. For purposes of clarity, in the event
the Subscriber purchases Shares in the IPO or in the aftermarket, any additional Shares so purchased shall be eligible to receive
any liquidating distributions by the Company. However, in no event will the Subscriber have the right to redeem any Shares into
funds held in the Trust Account upon the successful completion of an initial business combination.
5.
Restrictions on Transfer.
5.1.
Securities Law Restrictions. In addition to any restrictions to be contained in that certain letter agreement (commonly
known as an “Insider Letter”) to be dated as of the closing of the IPO by and between Subscriber and the Company,
Subscriber agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Shares unless, prior
thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state securities laws with
respect to the Shares proposed to be transferred shall then be effective or (b) the Company has received an opinion from counsel
reasonably satisfactory to the Company, that such registration is not required because such transaction is exempt from registration
under the Securities Act and the rules promulgated by the Securities and Exchange Commission thereunder and with all applicable
state securities laws.
5.2.
Lock-up. Subscriber acknowledges that the Securities will be subject to lock-up provisions (the “Lock-up”)
contained in the Insider Letter.
5.3.
Restrictive Legends. Any certificates representing the Shares shall have endorsed thereon legends substantially as follows:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES
LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND
SUCH LAWS WHICH, IN THE OPINION OF COUNSEL, IS AVAILABLE.”
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A LOCKUP AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED DURING THE TERM OF THE LOCKUP.”
5.4.
Additional Shares or Substituted Securities. In the event of the declaration of a share dividend, the declaration of an
extraordinary dividend payable in a form other than Shares, a spin-off, a share split, an adjustment in conversion ratio, a recapitalization
or a similar transaction affecting the Company’s outstanding Shares without receipt of consideration, any new, substituted
or additional securities or other property which are by reason of such transaction distributed with respect to any Shares subject
to this Section 5 or into which such Shares thereby become convertible shall immediately be subject to this Section 5 and Section
3. Appropriate adjustments to reflect the distribution of such securities or property shall be made to the number and/or class
of Shares subject to this Section 5 and Section 3.
5.5.
Registration Rights. Subscriber acknowledges that the Shares are being purchased pursuant to an exemption from the registration
requirements of the Securities Act and will become freely tradable only after certain conditions are met or they are registered
pursuant to a registration rights agreement to be entered into with the Company prior to the closing of the IPO.
6.
Other Agreements.
6.1.
Further Assurances. Subscriber agrees to execute such further instruments and to take such further action as may reasonably
be necessary to carry out the intent of this Agreement.
6.2.
Notices. All notices, statements or other documents which are required or contemplated by this Agreement shall be: (i)
in writing and delivered personally or sent by first class registered or certified mail, overnight courier service or facsimile
or electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such
party or such other address or fax number as may be designated in writing by such party and (iii) by electronic mail, to the electronic
mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such
party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered
personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one
(1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.
6.3.
Entire Agreement. This Agreement, together with the Insider Letter and the Registration Rights Agreement, each substantially
in the form to be filed as an exhibit to the Registration Statement on Form S-1 associated with the Company’s TO, embodies
the entire agreement and understanding between the Subscriber and the Company with respect to the subject matter hereof and supersedes
all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict,
the express terms and provisions of this Agreement.
6.4.
Modifications and Amendments. The terms and provisions of this Agreement may be modified or amended only by written agreement
executed by all parties hereto.
6.5.
Waivers and Consents. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom
granted, only by a written document executed by the party entitled to the benefits of such terms or provisions. No such waiver
or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose
for which it was given, and shall not constitute a continuing waiver or consent.
6.6.
Assignment. The rights and obligations under this Agreement may not be assigned by either party hereto without the prior
written consent of the other party.
6.7.
Benefit. All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the
parties hereto and shall inure to the benefit of the respective successors and permitted assigns of each party hereto. Nothing
in this Agreement shall be construed to create any rights or obligations except among the parties hereto, and no person or entity
shall be regarded as a third-party beneficiary of this Agreement.
6.8.
Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance
with and governed by the laws of New York applicable to contracts wholly performed within the borders of such state, without giving
effect to the conflict of law principles thereof.
6.9.
Severability. In the event that any court of competent jurisdiction shall determine that any provision, or any portion
thereof, contained in this Agreement shall be unreasonable or unenforceable in any respect, then such provision shall be deemed
limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect.
In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions
of this Agreement shall nevertheless remain in full force and effect.
6.10.
No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy
under this Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power
or remedy of such party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor
any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other
or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party
hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on
a party not expressly required under this Agreement shall entitle the party receiving such notice or demand to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand
to any other or further action in any circumstances without such notice or demand.
6.11.
Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Agreement
or in any other agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery
hereof and any investigations made by or on behalf of the parties.
6.12.
No Broker or Finder. Each of the parties hereto represents and warrants to the other that no broker, finder or other financial
consultant has acted on its behalf in connection with this Agreement or the transactions contemplated hereby in such a way as
to create any liability on the other. Each of the parties hereto agrees to indemnify and save the other harmless from any claim
or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been
employed by or on behalf of such party and to bear the cost of legal expenses incurred in defending against any such claim.
6.13.
Headings and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference
only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.
6.14.
Counterparts. This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other
party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered
by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation
of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page
were an original thereof.
6.15.
Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity
or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto and
no presumption or burden of proof will arise favoring or disfavoring any party hereto because of the authorship of any provision
of this Agreement. The words “include,” “includes,” and “including” will be
deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be
construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa,
unless the context otherwise requires. The words “this Agreement,”“herein,”“hereof,”“hereby,”“hereunder,”
and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited.
The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance.
If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there
exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of
specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in
breach of the first representation, warranty, or covenant.
6.16.
Mutual Drafting. This Agreement is the joint product of the Subscriber and the Company and each provision hereof has been
subject to the mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party
hereto.
7.
Voting and Tender of Shares. Subscriber agrees to vote the Shares in favor of an initial business combination that the
Company negotiates and submits for approval to the Company’s stockholders and shall not seek redemption with respect to
such Shares. Additionally, the Subscriber agrees not to tender any Shares in connection with a tender offer presented to the Company’s
stockholders in connection with an initial business combination negotiated by the Company.
8. Indemnification.
Each party shall indemnify the other against any loss, cost or damages (including reasonable attorney’s fees and
expenses) incurred as a result of such party’s breach of any representation, warranty, covenant or agreement in this
Agreement.
[Signature
Page Follows]
If
the foregoing accurately sets forth our understanding and agreement, please sign the enclosed copy of this Agreement and return
it to us.
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Very
truly yours,
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MALLARD
ACQUISITION CORP.
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By:
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/s/ John F. Kirtley
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Name:
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John F. Kirtley
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Title:
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Chief Financial Officer and Secretary
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Accepted
and agreed as of the date first written above.
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MALLARD
FOUNDERS HOLDINGS LLC
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By:
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/s/
P. Jeffrey Leck
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Name:
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P.
Jeffrey Leck
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Title:
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Managing
Member
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[Signature
Page to Securities Subscription Agreement)