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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date
of report (Date of earliest event reported): September 18, 2023
PROCESSA
PHARMACEUTICALS, INC.
(Exact
Name of Registrant as Specified in Its Charter)
Delaware |
|
001-39531 |
|
45-1539785 |
(State
or Other Jurisdiction
of
Incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
Identification
Number) |
7380
Coca Cola Drive, Suite 106
Hanover,
Maryland, 21076
(Address
of principal executive offices)
(443)
776-3133
(Registrant’s
telephone number, including area code)
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under
any of the following provisions.
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14d-2(b) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c) |
Securities
registered pursuant to Section 12(b)of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common stock: Par value
$.0001 |
|
PCSA |
|
Nasdaq Capital Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard.
As
previously disclosed on Form 8-K filed on March 22, 2023, Processa Pharmaceuticals, Inc. (the “Company”) received a letter
(the “Notice”) from the Listing Qualifications Department (the “Staff”) of The Nasdaq Stock Market LLC (“Nasdaq”)
notifying the Company that, for the previous 30 consecutive business days, the bid price for the Company’s common stock had closed
below the minimum $1.00 per share requirement for continued listing on The Nasdaq Capital Market under Nasdaq Listing Rule 5550(a)(2)
(the “Bid Price Requirement”).
On
September 19, 2023, the Company received a letter from the Staff notifying that the Company is eligible for a second 180-day period,
or until March 18, 2024 (the “Second Grace Period”) to regain compliance with the Bid Price Requirement. According to the
notification from Nasdaq, the Staff’s determination was based on (i) the Company meeting the continued listing requirement for
market value of its publicly held shares and all other Nasdaq initial listing standards, with the exception of the minimum bid price
requirement, and (ii) the Company’s written notice to Nasdaq of its intention to cure the deficiency during the second compliance
period by effecting a reverse stock split, if necessary. If at any time during this Second Grace Period, the closing bid price of the
common stock is at least $1 per share for a minimum of 10 consecutive business days, Nasdaq will provide the Company with written confirmation
of compliance.
The
letter has no immediate impact on the listing of the Company’s common stock, which will continue to be listed and traded on The
Nasdaq Capital Market, subject to the Company’s compliance with the other continued listing requirements of The Nasdaq Capital
Market. The Company will consider implementing a reverse stock split to regain compliance with the continued listing requirements.
Item 5.03 |
Amendment to Articles of Incorporation or Bylaws.
|
On
September 18, 2023, the Board of Directors (the “Board”) of the Company adopted the Amended and Restated Bylaws (as amended,
the “Bylaws”). The Bylaws, which became effective immediately, include the following changes, among others which are more
administrative in nature:
|
● |
Section 2.5 was amended
to change the vote standard for routine matters from majority of votes present to a majority of votes cast. The standard now provides
abstentions have no effect on proposals. Other, minor changes were made to related provisions of the Bylaws to reflect the adoption
of majority voting. |
|
|
|
|
● |
Section 2.9 was amended
to provide that stockholders may act by written consent provided that specified procedures are followed and prompt notice is provided
to the Company. |
|
|
|
|
● |
Sections 3.1 and 3.2 were
amended so the number of directors could be changed from time to time by resolution of the Board of Directors and further clarifies
that stockholders will not fill Board vacancies. |
|
|
|
|
● |
Section 3.4 was amended
so Directors may only be removed for cause by a 66% vote of stockholders and that they may no longer be removed without cause. |
|
|
|
|
● |
Article VIII was amended
to remove exceptions to indemnification that were previously contained in the Bylaws. |
|
|
|
|
● |
Section
9.5 was revised to allow the Board to hold stockholder meetings electronically with expanded detail. |
|
|
|
|
● |
Section 9.15 was amended
to provide that all derivative actions, breach of fiduciary claims or similar claims must be filed exclusively in the Court of Chancery
in the State of Delaware (or an alternative court in Delaware in the event the Chancery Court lacks jurisdiction). |
|
|
|
|
● |
The
amendments makes certain other administrative, modernizing, clarifying, and conforming changes; and include
revisions to reflect recent changes in the Delaware General Corporation Law.
|
The
preceding description of the Bylaws is qualified in its entirety by reference to the full text of the Bylaws dated September 18, 2023,
which is attached to this Current Report on Form 8-K as Exhibit 3.1 and incorporated herein by reference.
Item 9.01. |
Financial Statements and Exhibits. |
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
|
|
Processa Pharmaceuticals, Inc. |
|
|
|
|
Date: |
September 21, 2023 |
By: |
/s/ James
Stanker |
|
|
|
James Stanker |
|
|
|
Chief
Financial Officer |
Exhibit
3.1
AMENDED
AND RESTATED
BYLAWS
OF
PROCESSA
PHARMACEUTICALS, INC.
(THE
“CORPORATION”)
ARTICLE
I
OFFICES
Section
1.1. Registered Office. The registered office of Processa Pharmaceuticals, Inc. (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 in accordance with these Bylaws.
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 Chair 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. 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 stockholder 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). Notices of meetings to stockholders
may be given by mailing the same, addressed to the stockholder entitled thereto, at such stockholder’s mailing address as it appears
on the records of the Corporation and such notice shall be deemed to be given when deposited in the U.S. mail, postage prepaid. Without
limiting the manner by which notices of meetings otherwise may be given effectively to stockholders, any such notice may be given by
electronic transmission in accordance with applicable law. Notice of any meeting need not be given to any stockholder who shall, either
before or after the meeting, submit a waiver of notice or who shall attend such meeting, except when the stockholder attends for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully
called or convened. Any stockholder so waiving notice of the meeting shall be bound by the proceedings of the meeting in all respects
as if due notice thereof had been given. 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 Disclosure (as defined in Section 2.7(a)(ii))
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 Bylaws, 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 chair 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.
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 10th 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 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. Except as provided by applicable law, 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(c)), 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 chair 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 or the delivery of a consent action in writing to
the Corporation pursuant to Section 2.9. 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 Bylaws 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. In advance of any meeting of the stockholders, the Board shall appoint one or more inspectors, who may be employees
of the Corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The Board may designate one
or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting,
the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon
the discharge of 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 inspector or inspectors may appoint or retain other persons or entities to assist
the inspector or inspectors in the performance of their duties. In determining the validity and counting of proxies and ballots cast
at any meeting of stockholders, the inspector or inspectors may consider such information as is permitted by applicable law. No person
who is a candidate for office at an election may serve as an inspector at such election. When executing the duties of inspector, the
inspector or inspectors shall: (i) ascertain the number of shares outstanding and the voting power of each; (ii) determine the shares
represented at the meeting and the validity of proxies and ballots; (iii) count all votes and ballots; (iv) determine and retain for
a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and (v) certify their
determination of the number of shares represented at the meeting and their count of all votes and ballots.
Section
2.6. Adjournments. Any meeting of stockholders, annual or special, may be adjourned by the chair of the meeting, from time to
time, whether or not there is a quorum, to reconvene at the same or some other place, if any. 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 (i) announced at the meeting at which the adjournment
is taken, (ii) displayed, during the time scheduled for the meeting, on the same electronic network used to enable stockholders and proxy
holders to participate in the meeting by means of remote communication, or (iii) set forth in the notice of meeting given in accordance
with Section 2.3. 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 of Stockholder Nominations and Proposals.
(a) Annual
Meetings of Stockholders.
(i) At
a meeting of the stockholders, only such nominations of persons for the election of directors and such other business shall be conducted
as shall have been properly brought before the meeting. To be properly brought before an annual meeting, nominations or such other business
must be: (A) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board or any committee
thereof; (B) otherwise properly brought before the meeting by or at the direction of the Board or any committee thereof; or (C) otherwise
properly brought before an annual meeting by a stockholder who is a stockholder of record of the Corporation at the time such notice
of meeting is delivered, who is entitled to vote at the meeting, and who complies with the notice procedures set forth in this Section
2.7.
(ii) In
addition, any proposal of business (other than the nomination of persons for election to the Board) must be a proper matter for stockholder
action. For business (including, but not limited to, director nominations) to be properly brought before an annual meeting by a stockholder
pursuant to Section 2.7(a)(i)(D), the stockholder or stockholders of record intending to propose the business (the “Proposing
Stockholder”) must have given timely notice thereof pursuant to this Section 2.7(a), in writing to the Secretary
even if such matter is already the subject of any notice to the stockholders or Public Disclosure from the Board. To be timely, a Proposing
Stockholder’s notice for an annual meeting must be delivered to the Secretary at the principal executive offices of the Corporation:
(x) not later than the close of business on the 90th day, nor earlier than the close of business on the 120th day, in advance of the
anniversary of the previous year’s annual meeting if such meeting is to be held on a day which is not more than 30 days in advance
of the anniversary of the previous year’s annual meeting or not later than 60 days after the anniversary of the previous year’s
annual meeting; and (y) with respect to any other annual meeting of stockholders, including in the event that no annual meeting was held
in the previous year, not earlier than the close of business on the 120th day prior to the annual meeting and not later than the close
of business on the later of: (1) the 90th day prior to the annual meeting and (2) the close of business on the 10th day following the
first date of Public Disclosure of the date of such meeting. In no event shall the Public Disclosure of an adjournment or postponement
of an annual meeting commence a new notice time period (or extend any notice time period). For the purposes of this Section 2.7,
“Public Disclosure” shall mean a disclosure made in a press release reported by the Dow Jones News Services,
The Associated Press, or a comparable national news service or in a document filed by the Corporation with the Securities and Exchange
Commission pursuant to Section 13, 14, or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(b) Stockholder
Nominations. For the nomination of any person or persons for election to the Board pursuant to Section 2.7(a)(i)(D) or Section
2.7(d), a Proposing Stockholder’s notice to the Secretary shall set forth or include: (i) the name, age, business address,
and residence address of each nominee proposed in such notice; (ii) the principal occupation or employment of each such nominee; (iii)
the class and number of shares of capital stock of the Corporation which are owned of record and beneficially by each such nominee (if
any); (iv) such other information concerning each such nominee as would be required to be disclosed in a proxy statement soliciting proxies
for the election of such nominee as a director in an election contest (even if an election contest is not involved) or that is otherwise
required to be disclosed, under Section 14(a) of the Exchange Act; (v) a written statement executed by each such nominee acknowledging
that such person consents to being named in the Company’s proxy statement as a nominee and to serving as a director if elected,
and (vi) as to the Proposing Stockholder: (A) the name and address of the Proposing Stockholder as they appear on the Corporation’s
books and of the beneficial owner, if any, on whose behalf the nomination is being made, (B) the class and number of shares of the Corporation
which are owned by the Proposing Stockholder (beneficially and of record) and owned by the beneficial owner, if any, on whose behalf
the nomination is being made, as of the date of the Proposing Stockholder’s notice, and a representation that the Proposing Stockholder
will notify the Corporation in writing of the class and number of such shares owned of record and beneficially as of the record date
for the meeting within five business days after the record date for such meeting, (C) a description of any agreement, arrangement, or
understanding with respect to such nomination between or among the Proposing Stockholder or the beneficial owner, if any, on whose behalf
the nomination is being made and any of their affiliates or associates, and any others (including their names) acting in concert with
any of the foregoing, and a representation that the Proposing Stockholder will notify the Corporation in writing of any such agreement,
arrangement, or understanding in effect as of the record date for the meeting within five business days after the record date for such
meeting, (D) a description of any agreement, arrangement, or understanding (including any derivative or short positions, profit interests,
options, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the Proposing Stockholder’s
notice by, or on behalf of, the Proposing Stockholder or the beneficial owner, if any, on whose behalf the nomination is being made and
any of their affiliates or associates, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes
for, or increase or decrease the voting power of such person or any of their affiliates or associates with respect to shares of stock
of the Corporation, and a representation that the Proposing Stockholder will notify the Corporation in writing of any such agreement,
arrangement, or understanding in effect as of the record date for the meeting within five business days after the record date for such
meeting, (E) a representation that the Proposing Stockholder is a holder of record of shares of the Corporation entitled to vote at the
meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice, and (F)
a representation whether the Proposing Stockholder intends to deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the Corporation’s outstanding capital stock required to approve the nomination and/or otherwise to solicit proxies
from stockholders in support of the nomination.
The
Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility
of such proposed nominee to serve as an independent director of the Corporation or that could be material to a reasonable stockholder’s
understanding of the independence, or lack thereof, of such nominee. Any such update or supplement shall be delivered to the Secretary
at the Corporation’s principal executive offices no later than five business days after the request by the Corporation for subsequent
information has been delivered to the Proposing Stockholder.
(c) Other
Stockholder Proposals. For all business other than director nominations, a Proposing Stockholder’s notice to the Secretary
shall set forth as to each matter the Proposing Stockholder proposes to bring before the annual meeting: (i) a brief description of the
business desired to be brought before the annual meeting; (ii) the reasons for conducting such business at the annual meeting; (iii)
the text of any proposal or business (including the text of any resolutions proposed for consideration and in the event that such business
includes a proposal to amend these Bylaws, the language of the proposed amendment); (iv) any substantial interest (within the meaning
of Item 5 of Schedule 14A under the Exchange Act) in such business of such stockholder and the beneficial owner (within the meaning of
Section 13(d) of the Exchange Act), if any, on whose behalf the business is being proposed; (v) any other information relating to such
stockholder and beneficial owner, if any, on whose behalf the proposal is being made, required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies for the proposal and pursuant to and in accordance with
Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder; (vi) a description of all agreements, arrangements,
or understandings between or among such stockholder, the beneficial owner, if any, on whose behalf the proposal is being made, any of
their affiliates or associates, and any other person or persons (including their names) in connection with the proposal of such business
and any material interest of such stockholder, beneficial owner, or any of their affiliates or associates, in such business, including
any anticipated benefit therefrom to such stockholder, beneficial owner, or their affiliates or associates; and (vii) the information
required by Section 2.7(b)(vi) above.
(d) Special
Meetings of Stockholders.
(i) 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 called by the Board
at which directors are to be elected pursuant to the Corporation’s notice of meeting: (i) by or at the direction of the Board or
any committee thereof, or (ii) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder
of the Corporation who is a stockholder of record at the time the notice provided for in this Section 2.7(d) is delivered to the
Secretary, who is entitled to vote at the meeting, and upon such election and who complies with the notice procedures set forth in this
Section 2.7.
(ii) In
the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any
such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to
such position(s) as specified in the Corporation’s notice of meeting, if such stockholder delivers a stockholder’s notice
that complies with the requirements of Section 2.7(b) to the Secretary at the principal executive offices of the Corporation not
earlier than the close of business on the 120th day prior to such special meeting and not later than the close of business on the later
of: (x) the 90th day prior to such special meeting; or (y) the 10th day following the date of the first Public Disclosure of the date
of the special meeting and of the nominees proposed by the Board to be elected at such meeting. In no event shall the Public Disclosure
of an adjournment or postponement of a special meeting commence a new time period (or extend any notice time period).
(e) Effect
of Noncompliance. Only such persons who are nominated in accordance with the procedures set forth in this Section 2.7 shall
be eligible to be elected at any meeting of stockholders of the Corporation to serve as directors and only such other business shall
be conducted at a meeting as shall be brought before the meeting in accordance with the procedures set forth in this Section 2.7.
If any proposed nomination was not made or proposed in compliance with this Section 2.7, or other business was not made or proposed
in compliance with this Section 2.7, then except as otherwise required by law, the chair of the meeting shall have the power and
duty to declare that such nomination shall be disregarded or that such proposed other business shall not be transacted. Notwithstanding
anything in these Bylaws to the contrary, unless otherwise required by law, if a Proposing Stockholder intending to propose business
or make nominations at an annual meeting or propose a nomination at a special meeting pursuant to this Section 2.7 does not provide
the information required under this Section 2.7 to the Corporation, including the updated information required by Section 2.7(b)(vi)(B),
Section 2.7(b)(vi)(C), and Section 2.7(b)(vi)(D) within five business days after the record date for such meeting or the
Proposing Stockholder (or a qualified representative of the Proposing Stockholder) does not appear at the meeting to present the proposed
business or nominations, such business or nominations shall not be considered, notwithstanding that proxies in respect of such business
or nominations may have been received by the Corporation.
(f) Rule
14a-8. This Section 2.7 shall not apply to a proposal proposed to be made by a stockholder if the stockholder has notified
the Corporation of the stockholder’s intention to present the proposal at an annual or special meeting only pursuant to and in
compliance with Rule 14a-8 under the Exchange Act and such proposal has been included in a proxy statement that has been prepared by
the Corporation to solicit proxies for such meeting.
(g) In
addition to the provisions of this Section 2.7, 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 2.7
shall be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the Certificate of Incorporation.
(h) Notwithstanding
anything in Section 2.7 to the contrary, in the event that the number of directors is increased and there is no Public Disclosure
of the appointment of a director, or, if no appointment was made, of the vacancy, made by the Corporation at least 10 days before the
last day a stockholder may deliver a notice of nomination in accordance with Section 2.7, a stockholder’s notice required
by this Section 2.7 and which complies with the requirements in Section 2.7(b), other than the timing requirements in Section
2.7(a), shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it
is 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 day on which such Public Disclosure is first made by the Corporation.
Section
2.8. Conduct of Meetings. The chair of each annual and special meeting of stockholders shall be the Chair of the Board or, in
the absence (or inability or refusal to act) of the Chair 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 chair 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 Bylaws or such rules and regulations as adopted by the Board, the chair 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 chair, are appropriate for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board or prescribed by the chair of the meeting, may include, without limitation, the following:
(a) the
establishment of an agenda or order of business for the meeting;
(b) the
determination of when the polls shall open and close for any given matter to be voted on at the meeting;
(c) rules
and procedures for maintaining order at the meeting and the safety of those present;
(d) 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 chair of the meeting shall determine;
(e) restrictions
on entry to the meeting after the time fixed for the commencement thereof; and
(f) limitations
on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board or the chair 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 chair of the meeting. In the absence (or inability or refusal to
act) of the Secretary and all Assistant Secretaries, the chair of the meeting may appoint any person to act as secretary of the meeting.
Section
2.9. Action by Stockholders Without a Meeting. Subject to the following paragraph, any action that is properly brought before
the stockholders by or at the direction of the Board and that could be taken at an annual or special meeting of stockholders 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
(a) be signed by the holders of outstanding shares of capital stock entitled to be voted with respect to the subject matter thereof 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 (as determined in accordance with Section 9.4 hereof) and (b) 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 records of proceedings of meetings of stockholders. Delivery made to the Corporation’s registered office
shall be by hand or by certified mail 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 written consents signed by the requisite number of stockholders entitled to vote with respect to the subject matter thereof are
delivered to the Corporation, in the manner required by this Section 2.9, within 60 (or the maximum number permitted by applicable
law) days of the earliest dated consent delivered to the corporation in the manner required by this Section 2.9. The validity
of any consent executed by a proxy for a stockholder pursuant to an electronic transmission transmitted to such proxy holder by or upon
the authorization of the stockholder shall be determined by or at the direction of the Secretary. A written record of the information
upon which the person making such determination relied shall be made and kept in the records of the proceedings of the stockholders.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. Any such consent shall be inserted in the minute book as if it were the minutes of a
meeting of the stockholders.
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, including, without limitation, adopting rules
and procedures as it may deem proper for the conduct of its meetings and the management of the Corporation, as are not by statute or
by the Certificate of Incorporation or by these Bylaws required to be exercised or done by the stockholders. Directors need not be stockholders
or residents of the State of Delaware. Subject to any limitations in the laws of the State of Delaware, the Certificate of Incorporation
or these Bylaws, the number of directors may be changed from time to time by resolutions adopted by the Board of Directors and/or the
stockholders. No reduction of the number of directors shall have the effect of removing any director prior to the expiration of his or
her term of office.
Section
3.2. Vacancies. Unless otherwise provided in the Certificate of Incorporation, and subject to the rights of the holders of any
series of Preferred Stock or as otherwise provided by applicable law, any vacancies on the Board resulting from death, resignation, disqualification,
removal or other causes and any newly created directorships resulting from any increase in the number of directors shall be filled only
by the affirmative vote of a majority of the directors then in office, even though less than a quorum of the Board, or by a sole remaining
director, and not by the stockholders, provided, however, that whenever the holders of any class or classes of stock or series
thereof are entitled to elect one or more directors by the provisions of the Certificate of Incorporation, vacancies and newly created
directorships of such class or classes or series shall be filled by a majority of the directors elected by such class or classes or series
thereof then in office, or by a sole remaining director so elected, and not by the stockholders. Any director elected in accordance with
the preceding sentence shall hold office for the remainder of the full term of the director for which the vacancy was created or occurred
and until such director’s successor shall have been elected and qualified. A vacancy in the Board shall be deemed to exist under
this Bylaw in the case of the death, removal or resignation of any director.
Section
3.3. Resignation. Any director may resign at any time by notice given in writing or by electronic transmission to the Corporation.
Such resignation shall take effect at the date of receipt of such notice by the Corporation or at such later effective date or upon the
happening of an event or events as is therein specified. A verbal resignation shall not be deemed effective until confirmed by the director
in writing or by electronic transmission to the Corporation. When one or more directors shall resign from the Board, effective at a future
date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies,
the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold
office for the unexpired portion of the term of the director whose place shall be vacated and until his successor shall have been duly
elected and qualified.
Section
3.4. Removal. Subject to any limitations imposed by applicable law, any individual director or directors may be removed with cause
by the affirmative vote of the holders of at least 66 2/3% of the voting power of all then-outstanding shares of capital stock of the
Corporation entitled to vote generally at an election of directors. Directors shall not be removed without cause pursuant to this Section
3.4.
Section
3.5. Compensation. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, 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. 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
4.2. Special Meetings. Special meetings of the Board (a) may be called by the Chair of the Board or President and (b) shall be
called by the Chair of the Board, President 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 three 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 Bylaws, 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
4.3. 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 Bylaws. 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
4.4. Consent In Lieu of Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required
or permitted to be taken at any meeting of the Board 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
4.5. Organization. The chair of each meeting of the Board shall be the Chair of the Board or, in the absence (or inability or
refusal to act) of the Chair 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 chair 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 chair 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 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 Bylaws 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 Bylaws, 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 Bylaws.
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 Chair 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 Bylaws 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) Chair
of the Board. The Chair of the Board shall preside when present at all meetings of the stockholders and the Board. The Chair 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 Chair 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 Chair 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 Chair 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 Chair of the Board pursuant to Section 6.1(a) above. In the absence (or inability or refusal
to act) of the Chair 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 Chair 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.
Each Vice President of the Corporation shall have such powers and perform such duties as may be assigned to him or her from time to time
by the Board, the Chief Executive Officer or the President, or that are incident to the office of Vice President.
(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 Chair 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. The Treasurer shall perform other duties commonly incident to the office and shall also perform
such other duties and have such other powers as the Board, the Chief Executive Officer, the President and the Chief Financial Officer
(if not the Treasurer) shall designate from time to time.
Section
6.2. Resignations. Any officer may resign at any time by giving notice in writing or by electronic transmission to the Board or
to the Chief Executive Officer, or if no Chief Executive Officer is then serving, the President or to the Secretary. Any such resignation
shall be effective when received by the person or persons to whom such notice is given, unless a later time is specified therein, in
which event the resignation shall become effective at such later time. Unless otherwise specified in such notice, the acceptance of any
such resignation shall not be necessary to make it effective. Any resignation shall be without prejudice to the rights, if any, of the
Corporation under any contract with the resigning officer.
Section
6.3. 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 majority vote of the members of the Board
then in office. 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
6.4. Other Officers; Duties of Officers May Be Delegated. Such other officers as the Board may choose shall perform such duties
and have such powers as from time to time may be assigned to them by the Board. The Board may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers. In case any officer is absent, or for any
other reason that the Board may deem sufficient, the Chief Executive Officer or the President or the Board may delegate for the time
being the powers or duties of such officer to any other officer or to any director.
Section
6.5. Multiple Officeholders; Stockholder and Director Officers. Any number of offices may be held by the same person unless the
Certificate of Incorporation or these Bylaws 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 Chair 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, Stolen or Destroyed Certificates. The Board or the Secretary may direct a new certificate or uncertificated shares
to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed upon the
making of an affidavit of that fact by the owner of the allegedly lost, stolen, or destroyed certificate. When authorizing such issue
of a new certificate or uncertificated shares, the Board or the Secretary may, in its discretion and as a condition precedent to the
issuance thereof, require the owner of the lost, stolen, or destroyed certificate, or the owner’s legal representative to give
the Corporation a bond sufficient to indemnify it against any claim that may be made against the Corporation with respect to the certificate
alleged to have been lost, stolen, or destroyed or the issuance of such new certificate or uncertificated shares.
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, or a person for whom he or she is the legal
representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving
at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, 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) actually and reasonably incurred by such Indemnitee in connection with such proceeding; provided,
however, that, 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) actually and reasonably incurred in defending or otherwise participating in any such proceeding
in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that 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. Payment of such expenses actually and reasonably incurred by
such person, may be made by the Corporation, subject to such terms and conditions as the general counsel of the Corporation in his or
her discretion deems appropriate.
Section
8.3. 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
Bylaws, an agreement, a vote of stockholders or disinterested directors, or otherwise. The Corporation is specifically authorized to
enter into individual contracts with any or all of its directors, officers, employees or agents respecting indemnification and advances,
to the fullest extent not prohibited by the DGCL.
Section
8.4. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer,
employee, or agent of the Corporation, or is or was serving at the request of Corporation as a director, officer, employee, or agent
of another corporation, partnership, joint venture, trust, enterprise, or nonprofit entity against any liability asserted against him
or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would
have the power to indemnify him or her against such liability under the provisions of the DGCL.
Section
8.5. Indemnification of Other Persons; Other Indemnification. 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. The Corporation’s
obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect
as indemnification from such other corporation, partnership, joint venture, trust, enterprise or nonprofit entity.
Section
8.6. Amendments. Any amendment, repeal, or modification of this Article VIII shall not adversely affect any right or protection
hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification.
Section
8.7. 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
8.8. 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
8.9. 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 Bylaws 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) For
the purpose of determining stockholders entitled to consent to corporate action in writing without a meeting, 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 by the Board, and which
date shall not be more than 10 (or the maximum number permitted by applicable law) days after the date upon which the resolution fixing
the record date is adopted by the Board. If no record date has been fixed by the Board, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting, when no prior action by the Board is required by Chapter 1 of the
DGCL, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to
the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent
of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s
registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by
the Board and prior action by the Board is required by Chapter 1 of the DGCL, the record date for determining stockholders entitled to
consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board adopts the resolution
taking such prior action.
(c) 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 Bylaws 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 Bylaws 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 Bylaws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders
at that address to whom such notice is given. 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 Bylaws,
to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be
no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting
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 Bylaws,
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 Bylaws, 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 Bylaws, 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 and be heard. Such participation in a meeting
shall constitute presence in person at the meeting.
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. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends
such sum or sums as the Board from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies,
or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Board
shall think conducive to the interests of the Corporation, and the Board may modify or abolish any such reserve in the manner in which
it was created.
Section
9.8. Contracts and Negotiable Instruments. Except as otherwise provided by applicable law, the Certificate of Incorporation or
these Bylaws, 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 Chair 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 Chair of the Board, the Chief Executive Officer, the 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. All checks, notes, drafts, or other orders for the payment of money of the Corporation shall be signed, endorsed, or accepted
in the name of the Corporation by such officer, officers, person, or persons as from time to time may be designated by the Board or by
an officer or officers authorized by the Board to make such designation.
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, as may be prescribed by law or by the Board.
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. Any records administered by or on behalf of the Corporation in the
regular course of its business, including its stock ledger, books of account, and minute books, may be maintained on any information
storage device, method, or one or more electronic networks or databases (including one or more distributed electronic networks or databases);
provided that the records so kept can be converted into clearly legible paper form within a reasonable time, and, with respect to the
stock ledger, the records so kept comply with Section 224 of the DGCL. The Corporation shall so convert any records so kept upon the
request of any person entitled to inspect such records pursuant to applicable law.
Section
9.12. Surety Bonds. Such officers, employees and agents of the Corporation (if any) as the Chair 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 Chair 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
9.13. 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 Chair
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
9.14. Amendments. The Board shall have the power to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority
of the Board shall be required to adopt, amend, alter or repeal the Bylaws. The Bylaws 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 sixty-six and two-thirds
percent (66-2/3%) of the voting power (except as otherwise provided in Section 8.6) 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 Bylaws.
Section
9.15. Exclusive Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery
of the State of Delaware (or, if the Court of Chancery lacks jurisdiction, the federal district court for the District of Delaware unless
said court lacks subject matter jurisdiction in which case the Superior Court of the State of Delaware) shall be the sole and exclusive
forum for (a) any derivative action or proceeding brought on behalf of the Corporation, (b) any action asserting a claim of breach of
a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders,
(c) any action asserting a claim arising under any provision of the DGCL, the Certificate of Incorporation or these Bylaws or (d) any
action asserting a claim governed by the internal affairs doctrine, except for, as to each of (a) through (d) above, any claim (A) as
to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery
(and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination),
(B) which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or (C) for which the Court of
Chancery does not have subject matter jurisdiction. Notwithstanding any of the foregoing to the contrary, unless the Corporation consents
in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the sole and
exclusive forum for the resolution of any complaint asserting a cause of action arising under federal securities laws, including the
Securities Act of 1933, as amended. Notwithstanding any of the foregoing to the contrary, the provisions of this Section 9.15
will not apply to suits brought to enforce a duty or liability created by the Exchange Act, or any other claim for which the federal
courts have exclusive jurisdiction. If any action the subject matter of which is within the scope of the preceding sentence is filed
in a court other than a court located within the State of Delaware (a “Foreign Action”) in the name of any
stockholder, then such stockholder shall be deemed to have consented to (i) the personal jurisdiction of the state and federal courts
located within the State of Delaware in connection with any action brought in any such court to enforce the preceding sentence and (ii)
having service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign
Action as agent for such stockholder.
Adopted
September 18, 2023
v3.23.3
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Grafico Azioni Processa Pharmaceuticals (NASDAQ:PCSA)
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