8-K
Terrestrial Energy Inc. /DE/ (IMSR)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
October 23, 2025
Terrestrial Energy Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-42252 | 98-1785406 |
|---|---|---|
| (State or other jurisdiction <br><br>of incorporation) | (Commission File Number) | (IRS Employer<br><br>Identification No.) |
2730 W. Tyvola Road, Suite 100
Charlotte, NC 28217
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including area code:
(646) 687-8212
HCM II Acquisition Corp.
100 First Stamford Place, Suite 330
Stamford, CT 06902
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | 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 240.14a-12) |
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| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on<br><br> <br>which registered |
|---|---|---|
| Common Stock, par value $0.0001 per share | IMSR | The Nasdaq Stock Market LLC |
| Redeemable Warrants, each whole<br><br> warrant exercisable for one Common<br><br> Stock at a price of $11.50 per share | IMSRW | The Nasdaq Stock Market LLC |
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. ☐
INTRODUCTORY NOTE
Terms used in this Current Report on Form 8-K (this “Current Report”) but not defined herein, or for which definitions are not otherwise incorporated by reference herein, shall have the meanings given to such terms in the Proxy Statement/Prospectus (as defined below) in the section entitled “Frequently Used Terms” and such definitions are incorporated by reference herein.
This Current Report incorporates by reference certain information from reports and other documents that were previously filed with the Securities and Exchange Commission (the “SEC”), including certain information from the Proxy Statement/Prospectus. To the extent there is a conflict between the information contained in this Current Report and the information contained in such prior reports and documents incorporated by reference herein, the information in this Current Report controls.
Overview of Domestication
As previously announced, Terrestrial Energy Inc. (“New Terrestrial Energy” or the “Registrant”) (formerly known as HCM II Acquisition Corp., or “HCM II”), a Delaware corporation (prior to the Domestication, a Cayman Islands exempted company), entered into that certain Business Combination Agreement, dated as of March 26, 2025 (as amended from time to time, the “Business Combination Agreement”), by and among HCM II, Terrestrial Energy Development Inc., a Delaware corporation (formerly known as Terrestrial Energy Inc., or “Legacy Terrestrial Energy”), and HCM II Merger Sub Inc., a Delaware corporation and a direct wholly owned subsidiary of HCM II (“Merger Sub”), pursuant to which: (1) at the closing of the transactions contemplated by the Business Combination Agreement (the “Closing”) and following the Domestication (as defined below), Merger Sub merged with and into Legacy Terrestrial Energy (the “Merger”), with Legacy Terrestrial Energy surviving as a wholly owned subsidiary of New Terrestrial Energy, resulting in a combined company whereby New Terrestrial Energy became the sole stockholder of Legacy Terrestrial Energy, as more fully described in the definitive proxy statement and final prospectus of HCM II, dated September 26, 2025 (the “Proxy Statement/Prospectus”), which was filed with the SEC; (2) HCM II domesticated (the “Domestication”) as a Delaware corporation in accordance with the General Corporation Law of the State of Delaware, the Companies Act (As Revised) of the Cayman Islands and the amended and restated memorandum and articles of association of HCM II (as amended from time to time, the “Cayman Constitutional Documents”); and (3) the other transactions contemplated by the Business Combination Agreement and documents related thereto were consummated (such transactions, together with the Merger and the Domestication, the “Transactions”).
An extraordinary general meeting of HCM II shareholders was held on October 20, 2025 (the “Extraordinary General Meeting”), where the HCM II shareholders considered and approved, among other matters, a proposal to approve the Business Combination Agreement and the Transactions. In connection with the Extraordinary General Meeting, holders of 7,390 HCM II Class A Ordinary Share (as defined below) exercised their right to redeem their shares for cash at a redemption price of $10.54 per share, for an aggregate redemption amount of approximately $77,890.
On October 23, 2025, as contemplated by the Business Combination Agreement and described in the section titled “The Domestication Proposal” of the Proxy Statement/Prospectus, HCM II filed a notice of deregistration with the Cayman Islands Registrar of Companies, together with the necessary accompanying documents, and filed a certificate of incorporation (the “Certificate of Incorporation”) and a certificate of corporate domestication with the Secretary of State of the State of Delaware, pursuant to which HCM II was domesticated and continued as a Delaware corporation.
Immediately prior to the Domestication, pursuant to the Cayman Constitutional Documents and the Sponsor Support Agreement (as defined below), each of the then issued and outstanding Class B ordinary shares of HCM II, par value $0.0001 per share, converted automatically, on a one-for-one basis, into one (1) Class A ordinary share of HCM II, par value $0.0001 per share (each, a “HCM II Class A Ordinary Share”). As a result of and upon the effective time of the Domestication, among other things: (i) each then issued and outstanding HCM II Class A Ordinary Share (that was not redeemed pursuant to the Redemption) converted automatically, on a one-for-one basis, into one (1) share of common stock, par value $0.0001 per share, of the Registrant (each a “New Terrestrial Common Share”); (ii) each of the then issued and outstanding warrants representing the right to purchase one HCM II Class A Ordinary Share converted automatically into a warrant to acquire one (1) New Terrestrial Common Share (each a “New Terrestrial Warrant”); and (iii) each of the then issued and outstanding HCM II Units (as defined in the Proxy Statement/Prospectus) was cancelled and each holder thereof became entitled to one (1) New Terrestrial Common Share and one-half (1/2) of one New Terrestrial Warrant. No fractional warrants were issued upon such cancellation.
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Item 3.03. Material Modification to Rights of Security Holders.
The disclosure set forth in the Introductory Note above is incorporated into this Item 3.03 by reference.
On October 23, 2025, in connection with the Domestication, HCM II filed the Certificate of Incorporation with the Secretary of State of the State of Delaware and adopted its new bylaws (the “Bylaws”). The material terms of the Certificate of Incorporation and the Bylaws, the general effect upon the rights of holders of HCM II’s securities and the terms of the New Terrestrial Common Share and warrants are discussed in the Proxy Statement/Prospectus in the sections titled “The Domestication Proposal,” “The Organizational Documents Proposals” and “Description of New Terrestrial Energy’s Securities,” which are incorporated by reference herein.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Changein Fiscal Year.
The disclosure set forth in the Introductory Note and Item 3.03 of this Current Report is incorporated in this Item 5.03 by reference.
Copies of the Certificate of Incorporation and Bylaws are attached as Exhibits 3.2 and 3.3 to this Current Report, respectively, and are incorporated herein by reference.
Item 8.01. Other Events
The Merger was consummated on October 28, 2025. New Terrestrial Common Shares and New Terrestrial Warrants began trading on Nasdaq under the symbols “IMSR” and “IMSRW,” respectively, on October 29, 2025. In connection with the Domestication, the name of the Registrant was changed from “HCM II Acquisition Corp.” to “Terrestrial Energy Inc.”
The Registrant will file a Form 8-K with additional information regarding the Closing of the Merger within the period prescribed for such form.
Item 9.01 Financial Statements and Exhibits
| Exhibit Number | |
|---|---|
| 2.1 | Plan of Domestication. |
| 3.1 | Certificate of Corporate Domestication of the Registrant |
| 3.2 | Certificate of Incorporation of the Registrant |
| 3.3 | Bylaws of the Registrant |
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101). |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: October 29, 2025 | ||
|---|---|---|
| By: | /s/ Brian Thrasher | |
| Name: | Brian Thrasher | |
| Title: | Chief Financial Officer |
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Exhibit 2.1
PLAN OF DOMESTICATION
This PLAN OF DOMESTICATION (the “Plan of Domestication”) is made on October 23, 2025 and sets forth the terms and conditions pursuant to which HCM II Acquisition Corp., a Cayman Islands exempted company (“HCM II”), shall effect a domestication into a Delaware corporation (the “Domestication”) to be known as HCM II Acquisition Corp., pursuant to Sections 265 and 388 of the Delaware General Corporation Law (the “DGCL”).
RECITALS
WHEREAS, HCM II is a Cayman Islands exempted company duly formed and validly existing under the laws of the Cayman Islands;
WHEREAS, the Board of Directors of HCM II (the “Board”) has determined that it is advisable and in the best interests of HCM II that HCM II be converted into and thereafter become, and continue to exist as, a corporation in accordance with Sections 265 and 388 of the DGCL; and
WHEREAS, pursuant to Section 265(h) of the DGCL, the Board has duly approved, authorized, adopted, ratified and confirmed the Domestication pursuant to Sections 265 and 388 of the DGCL.
NOW, THEREFORE, in consideration of the covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, HCM II agrees as follows:
1. Domestication. Upon the Certificate of Domestication and the Certificate of Incorporation becoming effective under Section 103 of the DGCL (the “Effective Time”), HCM II will be converted into a Delaware corporation, pursuant to Sections 265 and 388 of the DGCL, under the name “HCM II Acquisition Corp.” (the “Corporation”) and will, for all purposes of the laws of the State of Delaware, be deemed to be the same entity as HCM II. HCM II will not be required to wind up its affairs or pay its liabilities and distribute its assets, and the Domestication will not be deemed to constitute a dissolution of HCM II and will constitute a continuation of the existence of HCM II in the form of a Delaware corporation.
2. Effective Time. HCM II shall file the Certificate of Domestication, in the form attached hereto as Exhibit A, and the Certificate of Incorporation, in the form attached hereto as Exhibit B (the “Certificate of Incorporation”), with the Secretary of State of the State of Delaware pursuant to Sections 103 and 265 of the DGCL.
3. Conversion of Securities. By virtue of the Domestication:
(a) each of the then issued and outstanding Class A ordinary shares of HCM II will convert automatically, on a one-for-one basis, into a share of common stock of the Corporation having the rights, powers and privileges, and the obligations, set forth in the Certificate of Incorporation;
(b) each of the then issued and outstanding public warrants of HCM II will convert automatically into a public warrant to acquire one share of the Corporation’s common stock, pursuant to the Warrant Agreement, dated August 19, 2024, between HCM II and Continental Stock Transfer & Trust Company, as warrant agent (the “Warrant Agreement”);
(c) each of the then issued and outstanding private placement warrants of HCM II will convert automatically into a private placement warrant to acquire one share of the Corporation’s common stock, pursuant to the Warrant Agreement; and
(d) each of the then issued and outstanding units of HCM II that have not been previously separated into the underlying Class A ordinary shares and underlying public warrants of HCM II upon the request of the holder thereof, will be cancelled and will entitle the holder thereof to one share of common stock of the Corporation and one-half of one public warrant to acquire one share of common stock of the Corporation.
4. Tax Matters. For United States federal income tax purposes, the Domestication is intended to qualify as a “reorganization” within the meaning of Section 368(a)(1)(F) of the U.S. Internal Revenue Code of 1986, as amended, and this Plan of Domestication is intended to constitute a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a).
5. Governing Documents. (i) At the Effective Time, the Certificate of Incorporation of HCM II (initially filed in accordance with the Companies Law of the Cayman Islands) shall be canceled and the Amended and Restated Memorandum and Articles of Association of HCM II, adopted by special resolution dated as of August 15, 2024 and effective as of August 15, 2024, as may be amended, modified or supplemented, shall be terminated and be of no further force or effect and (ii) from and after the Effective Time, the Certificate of Incorporation, in the form attached hereto as Exhibit B, and the By-Laws of the Corporation, in the form attached hereto as Exhibit C (the “Bylaws”), will govern the affairs of the Corporation and the conduct of its business, until thereafter amended in accordance with the DGCL and their respective terms.
6. Board of Directors. Each member of the Board as of immediately prior to the Effective Time shall be a director of the Corporation from and after the Effective Time, each of whom shall serve as directors of the Corporation until such time as their respective successors have been duly elected and qualified, or until such director’s earlier removal, resignation, death or disability, in each case, in accordance with the DGCL, the Certificate of Incorporation and the Bylaws.
7. Officers. Each officer of HCM II as of immediately prior to the Effective Time shall be an officer of the Corporation from and after the Effective Time, and shall retain the same title with the Corporation from and after the Effective Time as he or she had with HCM II immediately prior to the Effective Time, each of whom shall serve until such time as their respective successors have been designated by the board of directors, or until such officer’s earlier removal, resignation, death or disability, in each case, in accordance with the DGCL, the Certificate of Incorporation and the Bylaws.
8. Effects of Domestication. Immediately upon the Effective Time, the Domestication shall have the effects set forth in Section 265(f) of the DGCL, including, without limitation, all of the rights, privileges and powers of HCM II, and all property, real, personal and mixed, and all debts due to HCM II, as well as all other things and causes of action belonging to HCM II, will remain vested in the Corporation and will be the property of the Corporation and the title to any real property vested by deed or otherwise in HCM II will not revert or be in any way impaired by reason of the DGCL. Following the Domestication, all rights of creditors and all liens upon any property of HCM II will be preserved unimpaired, and all debts, liabilities and duties of HCM II will remain attached to the Corporation, and may be enforced against the Corporation to the same extent as if said debts, liabilities and duties had originally been incurred or contracted by the Corporation. The rights, privileges, powers and interests in property of HCM II as well as the debts, liabilities and duties of HCM II, will not be deemed, as a consequence of the Domestication, to have been transferred to the Corporation for any purpose of the laws of the State of Delaware.
9. Further Assurances. If at any time the Corporation, or its successors or assigns, shall consider or be advised that any further assignments or assurances in law or any other acts are necessary or desirable to carry out the purposes of this Plan of Domestication, HCM II and its directors and authorized officers shall be deemed to have granted to the Corporation an irrevocable power of attorney to execute and deliver all such proper deeds, assignments and assurances in law and to do all acts necessary or proper to vest, perfect or confirm title to and possession of such rights, properties or assets in the Corporation and otherwise to carry out the purposes of this Plan of Domestication, and the directors and authorized officers of the Corporation are fully authorized in the name of HCM II or otherwise to take any and all such action.
10. Amendment or Termination. This Plan of Domestication may be amended or terminated at any time before the Effective Time by action of the Board.
11. Miscellaneous. The provisions of this Plan of Domestication shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. This Plan of Domestication shall be governed by and construed in accordance with the laws of the State of Delaware, including the DGCL, without giving effect to any choice of law or conflict of law provisions or rule (except to the extent that the laws of the Cayman Islands govern the Domestication) that would cause the application of the laws of any jurisdiction other than the State of Delaware. This Plan of Domestication may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
***
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IN WITNESS WHEREOF, this Plan of Domestication has been duly executed and delivered by a duly authorized officer of HCM II as of the date first written above.
| HCM II Acquisition Corp. | |
|---|---|
| /s/ Shawn Matthews | |
| Name: | Shawn Matthews |
| Title: | Chairman and Chief Executive Officer |
[Signature Page to Plan of Domestication]
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Exhibit A
Certificate of Domestication
[intentionally omitted]
Exhibit B
Certificate of Incorporation
[intentionally omitted]
Exhibit C
Bylaws
[intentionally omitted]
Exhibit 3.1
Delaware
The First State
I, CHARUNI PATIBANDA-SANCHEZ,SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF CONVERSIONOF A CAYMAN ISLANDS CORPORATION UNDER THE NAME OF “HCM II ACQUISITION CORP.” TO A DELAWARE CORPORATION, FILED IN THIS OFFICEON THE TWENTY-THIRD DAY OF OCTOBER, A.D. 2025, AT 1:13 O`CLOCK P.M.
| 10377140 8100F<br><br>SR# 20254352750 | Authentication: 205119252 <br><br>Date: 10-23-25 |
|---|---|
| You may verify this certificate online at corp.delaware.gov/authver.shtml |
State of Delaware Secretary of State Division of Corporations Delivered 01:13 PM 10/23/2025 FILED 01:13 PM 10/23/2025 SR 20254352750 -File Number 10377140
STATE OF DELAWARE
CERTIFICATE OF DOMESTICATION
FROM A NON-DELAWARE CORPORATION
TO A DELAWARE CORPORATION
PURSUANT TO SECTION 388 OF THE
DELAWARE GENERAL CORPORATION LAW
HCM II Acquisition Corp., presently a Cayman Islands exempted company, organized and existing under the laws of the Cayman Islands (the “Non-Delaware Corporation”), does hereby certify:
| 1) | The Non-Delaware Corporation was first formed on April 4,<br>2024. |
|---|---|
| 2) | The name under which the Non-Delaware Corporation first formed<br>was HCM II Acquisition Corp., and the jurisdiction where the Non-Delaware Corporation first formed is the Cayman Islands. |
| --- | --- |
| 3) | The name of the Non-Delaware Corporation immediately prior<br>to filing this Certificate is HCM II Acquisition Corp. |
| --- | --- |
| 4) | The jurisdiction that constituted the seat, siege social,<br>or principal place of business or central administration of the Non-Delaware Corporation or any other equivalent thereto under applicable<br>law, immediately prior to the filing of this Certificate is the Cayman Islands. |
| --- | --- |
| 5) | The name of the Corporation as set forth in the Certificate<br>of Incorporation is HCM II Acquisition Corp. |
| --- | --- |
| 6) | The domestication has been approved in the manner provided for by the document, instrument, agreement or other writing, as the case<br>may be, governing the internal affairs of the Non-Delaware Corporation and the conduct of its business or by applicable non-Delaware law,<br>as appropriate. |
| --- | --- |
[Signature on next page.]
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IN WITNESS WHEREOF, the undersigned being duly authorized to sign on behalf of the converting Non-Delaware Corporation has executed this Certificate on the 23rd day of October, 2025.
| HCM II Acquisition Corp., a Cayman Islands exempted company | |
|---|---|
| /s/ Shawn Matthews | |
| Name: | Shawn Matthews |
| Title: | Chairman and Chief Executive Officer |
[Signature Page to Certificate of Domestication]
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Exhibit 3.2
CERTIFICATE OF INCORPORATION
OF
HCM II ACQUISITION CORP.
* * * * *
ARTICLE I
NAME
The name of the Corporation is HCM II Acquisition Corp. (the “Corporation”).
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the registered office of the Corporation in the State of Delaware is The Corporation Trust Company. The name of the registered agent of the Corporation in the State of Delaware at such address is 1209 Orange Street, Wilmington, Delaware 19801.
ARTICLE III
PURPOSE
| A. | The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now<br>or hereafter be organized under the General Corporation Law of the State of Delaware (the “DGCL”). |
|---|---|
| B. | The Corporation is to have perpetual existence. |
| --- | --- |
ARTICLE IV
CAPITAL STOCK
| A. | The total number of shares of all classes of stock that the Corporation shall have authority to issue<br>is 501,000,000, which shall be divided into two classes as follows: |
|---|
500,000,000 shares of common stock, par value $0.0001 per share (“Common Stock”); and
1,000,000 shares of preferred stock, par value $0.0001 per share (“Preferred Stock”).
| B. | The Board of Directors of the Corporation (the “Board of Directors”) is hereby expressly<br>authorized, by resolution or resolutions, to provide, out of the unissued shares of Preferred Stock, for one or more series of Preferred<br>Stock and, with respect to each such series, to fix the designation of such series, the powers (including voting powers), preferences<br>and relative, participating, optional and other special rights, and the qualifications, limitations or restrictions thereof, of such series<br>of Preferred Stock and the number of shares of such series, which number the Board of Directors may, except where otherwise provided in<br>the designation of such series, increase (but not above the total number of authorized shares of Preferred Stock) or decrease (but not<br>below the number of shares of such series then outstanding) and as may be permitted by the DGCL. The powers, preferences and relative,<br>participating, optional and other special rights of, and the qualifications, limitations or restrictions thereof, of each series of Preferred<br>Stock, if any, may differ from those of any and all other series at any time outstanding. Except as otherwise expressly provided in this<br>Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock (a “PreferredStock Designation”)), no vote of the holders of shares of Preferred Stock or Common Stock shall be a prerequisite to the issuance<br>of any shares of any series of the Preferred Stock so authorized in accordance with this Certificate of Incorporation. |
|---|---|
| C. | Each holder of record of Common Stock, as such, shall have one vote for each share of Common Stock that<br>is outstanding in his, her or its name on the books of the Corporation on all matters on which stockholders are entitled to vote generally.<br>Except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation<br>(including any Preferred Stock Designation) that relates solely to the terms, number of shares, powers, designations, preferences or relative,<br>participating, optional or other special rights (including, without limitation, voting rights), or to qualifications, limitations or restrictions<br>thereof, of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or<br>together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any<br>Preferred Stock Designation) or pursuant to the DGCL. |
| --- | --- |
| D. | Except as otherwise required by law, holders of any series of Preferred Stock shall be entitled to only<br>such voting rights, if any, as shall expressly be granted thereto by this Certificate of Incorporation (including any Preferred Stock<br>Designation). |
| --- | --- |
| E. | Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred<br>Stock or any class or series of stock having a preference over or the right to participate with the Common Stock with respect to the payment<br>of dividends and other distributions in cash, property or shares of stock of the Corporation, dividends and other distributions may be<br>declared and paid ratably on the Common Stock out of the assets of the Corporation that are legally available for this purpose at such<br>times and in such amounts as the Board of Directors in its discretion shall determine. |
| --- | --- |
| F. | Upon the dissolution, liquidation or winding up of the Corporation, after payment or provision for payment<br>of the debts and other liabilities of the Corporation and subject to the rights, if any, of the holders of any outstanding series of Preferred<br>Stock or any class or series of stock having a preference over or the right to participate with the Common Stock with respect to the distribution<br>of assets of the Corporation upon such dissolution, liquidation or winding up of the Corporation, the holders of Common Stock shall be<br>entitled to receive the remaining assets of the Corporation available for distribution to its stockholders ratably in proportion to the<br>number of shares held by them. |
| --- | --- |
| G. | The number of authorized shares of Preferred Stock or Common Stock may be increased or decreased (but<br>not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock<br>of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision<br>thereto) on a one vote per share basis, and no vote of the holders of any of the Common Stock or the Preferred Stock voting separately<br>as a class shall be required therefor, unless a vote of any such holder is required pursuant to this Certificate of Incorporation (including<br>any Preferred Stock Designation). |
| --- | --- |
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ARTICLE V
AMENDMENT OF THE CERTIFICATE OF INCORPORATION AND BYLAWS
| A. | In addition to any vote required by applicable law or this Certificate of Incorporation (including any<br>Preferred Stock Designation), the amendment, alteration, repeal or rescission of, in whole or in part, or the adoption of any provision<br>inconsistent with, the following provisions in this Certificate of Incorporation shall require the affirmative vote of the holders of<br>at least 66⅔% in voting power of all the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together<br>as a single class: this Article V, Article VI, Article VII, Article VIII, and Section<br>B of Article X. |
|---|---|
| B. | The Board of Directors is expressly authorized to make, repeal, alter, amend and rescind, in whole or<br>in part, the bylaws of the Corporation (as in effect from time to time, the “Bylaws”) without the assent or vote of<br>the stockholders in any manner not inconsistent with the laws of the State of Delaware or this Certificate of Incorporation. In addition<br>to any vote of the holders of any class or series of capital stock of the Corporation required by this Certificate of Incorporation (including<br>any Preferred Stock Designation), by the Bylaws or applicable law, the affirmative vote of the holders of at least 66⅔% in voting<br>power of all the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class, shall<br>be required in order for the stockholders of the Corporation to alter, amend, repeal or rescind, in whole or in part, any provision of<br>the Bylaws or to adopt any provision inconsistent therewith. |
| --- | --- |
ARTICLE VIBOARD OF DIRECTORS
| A. | Except as otherwise provided in this Certificate of Incorporation or the DGCL, the business and affairs<br>of the Corporation shall be managed by or under the direction of the Board of Directors. Subject to the rights of holders of any series<br>of Preferred Stock to elect directors, the number of directors of the Corporation shall be fixed from time to time solely by resolution<br>of the majority of the Board of Directors. No decrease in the number of directors constituting the Board of Directors shall shorten the<br>term of any incumbent director. |
|---|---|
| B. | Subject to the rights of holders of any series of Preferred Stock to elect directors, the Board of Directors<br>shall be and is divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be<br>possible, of one third of the total number of directors constituting the entire Board of Directors. The Board of Directors is authorized<br>to assign members of the Board of Directors already in office to Class I, Class II or Class III at the time such classification becomes<br>effective. |
| --- | --- |
| C. | Subject to the rights granted to the holders of any one or more series of Preferred Stock then outstanding,<br>each director shall serve for a term ending on the date of the third annual meeting of stockholders following the annual meeting of stockholders<br>at which such director was elected; provided, that each director initially assigned to Class I shall serve for a term expiring<br>at the Corporation’s first annual meeting of stockholders held after the effectiveness of this Certificate of Incorporation; each<br>director initially assigned to Class II shall serve for a term expiring at the Corporation’s second annual meeting of stockholders<br>held after the effectiveness of this Certificate of Incorporation; and each director initially assigned to Class III shall serve for a<br>term expiring at the Corporation’s third annual meeting of stockholders held after the effectiveness of this Certificate of Incorporation;<br>provided further, that the term of each director shall continue until the election and qualification of his or her successor and<br>be subject to his or her earlier death, disqualification, resignation or removal. |
| --- | --- |
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| D. | Subject to the rights granted to the holders of any one or more series of Preferred Stock then outstanding,<br>any newly created directorship on the Board of Directors that results from an increase in the number of directors and any vacancy occurring<br>on the Board of Directors (whether by death, resignation, retirement, disqualification, removal or other cause) shall be filled only by<br>a majority of the directors then in office, even if less than a quorum, or by a sole remaining director (and not by the stockholders).<br>Any director elected to fill a vacancy or newly created directorship shall hold office until the next election of the class for which<br>such director shall have been chosen and until his or her successor shall be elected and qualified, or until his or her earlier death,<br>resignation, retirement, disqualification or removal. |
|---|---|
| E. | Any director or the entire Board of Directors may be removed from office at any time, but only for cause<br>and only by the affirmative vote of the holders of at least 66 2/3% in voting power of all the then outstanding shares of stock of the<br>Corporation entitled to vote on the election of such director, voting together as a single class. |
| --- | --- |
| F. | Elections of directors need not be by written ballot unless the Bylaws shall so provide. |
| --- | --- |
| G. | Pursuant to the Bylaws, the Board of Directors may establish one or more committees to which may be delegated<br>any or all of the powers and duties of the Board of Directors to the full extent permitted by law. |
| --- | --- |
ARTICLE VII
LIMITATION OF DIRECTOR AND OFFICER LIABILITY
| A. | To the fullest extent permitted by the DGCL as it now exists or may hereafter be amended, a director or<br>officer of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for any breach of<br>fiduciary duty owed to the Corporation or its stockholders. If the DGCL is hereafter amended to authorize corporate action further eliminating<br>or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated<br>or limited to the fullest extent permitted by the DGCL as so amended, automatically and without further action, upon the date of such<br>amendment. |
|---|---|
| B. | To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification<br>of (and advancement of expenses to) directors, officers and agents of the Corporation (and any other persons to which applicable law permits<br>the Corporation to provide indemnification and advancement of expenses) through provisions of the Bylaws, agreements with such persons,<br>vote of stockholders or disinterested directors, or otherwise. Any repeal or modification of this provision shall not adversely affect<br>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. |
| --- | --- |
| C. | Neither the amendment nor repeal of this Article VII, nor the adoption of any provision of<br>this Certificate of Incorporation, nor, to the fullest extent permitted by the DGCL, any modification of law shall eliminate, reduce or<br>otherwise adversely affect any right or protection of a current or former director or officer of the Corporation existing at the time<br>of such amendment, repeal, adoption or modification. |
| --- | --- |
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ARTICLE VIII
CONSENT OF STOCKHOLDERS IN LIEU OF MEETING, ANNUAL AND SPECIAL MEETINGS OF STOCKHOLDERS
| A. | Any action required or permitted to be taken by the stockholders of the Corporation must be effected at<br>a duly called annual or special meeting of such holders and may not be effected by any consent in lieu of a meeting of stockholders by<br>such holders; provided, however, that any action required or permitted to be taken by the holders of Preferred Stock, voting<br>separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice<br>and without a vote, to the extent expressly so provided by the applicable certificate(s) of designation relating to such series of Preferred<br>Stock. |
|---|---|
| B. | Except as otherwise required by law and subject to the rights of the holders of any series of Preferred<br>Stock, special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time only by the Chief<br>Executive Officer, the President, the Board of Directors, the Chairperson of the Board of Directors, or any other person designated by<br>the Board of Directors, but such special meetings may not be called by stockholders or any other person or persons. |
| --- | --- |
| C. | An annual meeting of stockholders for the election of directors to succeed those whose terms expire and<br>for the transaction of such other business as may properly come before the meeting, shall be held at such place, if any, on such date,<br>and at such time as shall be fixed exclusively by resolution adopted by the Board or a duly authorized committee thereof. |
| --- | --- |
ARTICLE IX
MISCELLANEOUS
| A. | If any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal<br>or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions<br>in any other circumstance and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion<br>of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that<br>is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by law, in any way be affected<br>or impaired thereby and (ii) to the fullest extent permitted by law, the provisions of this Certificate of Incorporation (including, without<br>limitation, each such portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid,<br>illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents<br>from personal liability in respect of their good faith service or for the benefit of the Corporation to the fullest extent permitted by<br>law. |
|---|---|
| B. | Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery<br>of the State of Delaware (or if such court does not have subject matter jurisdiction another state or federal court (as appropriate) located<br>within the State of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action<br>or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current<br>or former director, officer or other employee or stockholder of the Corporation to the Corporation or the Corporation’s stockholders,<br>creditors or other constituents, (iii) any action asserting a claim against the Corporation or any current or former director or officer<br>of the Corporation arising pursuant to any provision of the DGCL or this Certificate of Incorporation or the Bylaws (as either may be<br>amended and/or restated from time to time), (iv) any action asserting a claim governed by the internal affairs doctrine, or (v) any action<br>as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware, except for any action asserted to enforce<br>any liability or duty created by the Securities Exchange Act of 1934, as amended, or, in each case, rules and regulations promulgated<br>thereunder, for which there is exclusive federal jurisdiction. Unless the Corporation consents in writing to the selection of an alternative<br>forum, the federal district courts of the United States of America shall be, to the fullest extent permitted by law, the sole and exclusive<br>forum for any action asserting a claim arising under the Securities Act of 1933. |
| --- | --- |
To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of Section B of this Article X.
| C. | The name and mailing address of the sole incorporator is as follows: |
|---|
Shawn Matthews
100 First Stamford Pl,
Stamford, CT 06902
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, HCM II Acquisition Corp. has caused this Certificate of Incorporation to be executed by its Incorporator on this day of October 23, 2025.
| HCM II Acquisition Corp. | |
|---|---|
| By: | /s/ Shawn Matthews |
| Name: | Shawn Matthews, Incorporator |
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Exhibit 3.3
HCM II ACQUISITION CORP.
BYLAWS
(as adopted and effective as of October 23, 2025)
TABLE OF CONTENTS
| STOCKHOLDERS MEETINGS | 1 | |
|---|---|---|
| 1. | Time and Place of Meetings. | 1 |
| 2. | Annual Meetings. | 1 |
| 3. | Special Meetings. | 1 |
| 4. | Notice of Meetings. | 1 |
| 5. | Inspectors. | 1 |
| 6. | Quorum. | 2 |
| 7. | Voting List. | 2 |
| 8. | Voting; Proxies. | 2 |
| 9. | Order of Business. | 3 |
| 10. | Notice of Stockholder Proposals. | 3 |
| 11 | Notice of Directors Nominations. | 6 |
| 12. | Additional Provisions Relating to the Notice of Stockholder Business and Director Nominations. | 7 |
| 13. | Record Dates. | 9 |
| 14. | Recesses and Adjournments. | 9 |
| DIRECTORS | 10 | |
| 15. | Function. | 10 |
| 16. | Number, Election and Terms. | 10 |
| 17. | Removal. | 10 |
| 18. | Resignation. | 10 |
| 19. | Regular Meetings. | 10 |
| 20. | Special Meetings. | 10 |
| 21. | Quorum; Voting. | 10 |
| 22. | Participation in Meetings by Remote Communications. | 10 |
| 23. | Committees. | 11 |
| 24. | Compensation. | 11 |
| 25. | Rules. | 11 |
| 26. | Chairperson; Vice Chairperson. | 11 |
| 27. | Indemnification. | 11 |
| NOTICES | 13 | |
| 28. | Generally. | 13 |
| 29. | Waivers. | 13 |
| OFFICERS | 14 | |
| 30. | Generally. | 14 |
| 31. | Compensation. | 15 |
| 32. | Succession. | 15 |
| 33. | Authority and Duties. | 15 |
| STOCK | 15 | |
| 34. | Certificates. | 15 |
| 35. | Lost, Stolen or Destroyed Certificates. | 16 |
| 36. | Transfers | 16 |
| GENERAL | 16 | |
| 37. | Fiscal Year. | 16 |
| 38. | Reliance upon Books, Reports and Records. | 16 |
| 39. | Amendments. | 16 |
| 40. | Severability | 16 |
| 41. | Certain Defined Terms | 16 |
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STOCKHOLDERS MEETINGS
1. Time and Place of Meetings. All meetings of stockholders will be held at such time and place, within or without the State of Delaware, as may be designated by the Board of Directors (the “Board”) of HCM II Acquisition Corp., a Delaware corporation (the “Corporation”), from time to time in such manner as set forth in the Corporation’s Certificate of Incorporation (the “Certificate of Incorporation”). Notwithstanding the foregoing, the Board may, in its sole discretion, determine that a meeting of stockholders will not be held at any place, but may instead be held by means of remote communications in a manner consistent with the General Corporation Law of the State of Delaware, as amended (the “DGCL”), subject to such guidelines and procedures as the Board may adopt from time to time. The Board may cancel or reschedule to an earlier or later date any previously scheduled annual or special meeting of stockholders.
2. Annual Meetings. At each annual meeting of stockholders, the stockholders will elect the directors from the nominees for director, to succeed those directors whose terms expire at such meeting and will transact such other business, in such case as may properly be brought before the meeting in accordance with Sections 9, 10, 11 and 12. The Board may postpone, reschedule or cancel any previously scheduled annual meeting of stockholders, before or after the notice for such meeting has been sent to the stockholders.
3. Special Meetings.(a) A special meeting of stockholders may be called only by such persons and only in such manner as set forth in the Certificate of Incorporation, in each case to transact only such business as is specified in the notice of such meeting.
4. Notice of Meetings. Notice of every meeting of stockholders, stating the place, if any, date and time thereof, the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, will be given, in a form permitted by Section 28 or by the DGCL, not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting, except as otherwise provided by law. When a meeting is recessed or adjourned to another place, date, or time, notice need not be given of the recessed or adjourned meeting if the place, if any, date and time thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such recessed or adjourned meeting, are (a) announced at the meeting at which the recess or adjournment is taken (b) 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 (c) set forth in the notice of meeting; provided, however, that if the recess or adjournment is for more than thirty (30) days, or if after the recess or adjournment a new record date is fixed for the recessed or adjourned meeting, written notice of the place, if any, date and time thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such recessed or adjourned meeting, must be given in conformity herewith.
5. Inspectors. The Board will, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and 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 of stockholders, the presiding officer of the meeting will appoint one or more inspectors to act at the meeting. The inspector shall have the duties prescribed by law and, when the vote is completed, shall make a certificate of the result of the vote taken and of such other facts as may be required by law. Every vote taken by ballots shall be counted by a duly appointed inspector or duly appointed inspectors.
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Quorum. Except as otherwise provided by law, the Certificate of Incorporation, these bylaws (“Bylaws”), or in a certificate of designation of a series of preferred stock filed by the Board pursuant to the DGCL (“Preferred Stock Designation”), the holders of a majority in voting power of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote at the meeting, present in person, present by means of remote communication in a manner, if any, authorized by the Board in its sole discretion, or represented by proxy, will constitute a quorum at a meeting of stockholders for the transaction of business thereat; provided, however, that where a separate vote by a class or classes or series of capital stock is required by law, the Certificate of Incorporation, these Bylaws, or in a Preferred Stock Designation, the holders of a majority in voting power of the shares of such class or classes or series of the capital stock of the Corporation issued and outstanding and entitled to vote on such matter, present in person, present by means of remote communication in a manner, if any, authorized by the Board in its sole discretion, or represented by proxy, shall constitute a quorum entitled to take action with respect to the vote on such matter. A quorum, once established, will not be broken by the subsequent withdrawal of enough votes to leave less than a quorum. If, however, such a quorum shall not be present or represented at any meeting of the stockholders, the presiding officer of the meeting shall have the power to recess or adjourn the meeting from time to time, in the manner provided in Section 14, until a quorum is present or represented. At any such adjourned meeting at which there is a quorum, any business may be transacted that might have been transacted at the meeting originally called.
7. Voting List. The Corporation shall prepare, at least ten (10) days before every meeting of stockholders, a complete list of stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date), arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least ten (10) days prior to the meeting, (a) on a reasonably accessible electronic network as permitted by applicable law (provided that the information required to gain access to the list is provided with the notice of the meeting), or (b) during ordinary business hours, at the principal place of business of the Corporation. If the meeting is held at a location where stockholders may attend in person, a list of stockholders entitled to vote at the meeting shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present at the meeting. If the meeting is held solely by means of remote communication, then the list shall be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access the list shall be provided with the notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 7 or to vote in person or by proxy at any meeting of stockholders. The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list.
8. Voting; Proxies.
(a) General. Except as otherwise provided by law, by the Certificate of Incorporation, in these Bylaws, or in a Preferred Stock Designation, each stockholder will be entitled at every meeting of the stockholders to one (1) vote for each share of stock having voting power standing in the name of such stockholder on the books of the Corporation on the record date for the meeting and such votes may be cast either in person or by proxy. Every proxy must be authorized in a manner permitted by Section 212 of the DGCL (or any successor provision) and may be documented, signed and delivered in accordance with Section 116 of the DGCL (or any successor provision) provided that such authorization shall set forth, or be delivered with, information enabling the Corporation to reasonably determine the identity of the stockholder granting such authorization.
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(b) Vote Required for Stockholder Action. When a quorum is present at any meeting of stockholders, the affirmative vote of a majority of the votes properly cast on the matter (excluding any abstentions or broker non-votes) will be the act of the stockholders with respect to all matters other than the election of directors (who will be elected by a plurality of all votes properly cast), except as otherwise provided in these Bylaws, the Certificate of Incorporation, a Preferred Stock Designation, the rules or regulations of any stock exchange applicable to the Corporation, or by law.
9. Order of Business. Meetings of stockholders shall be presided over by the Chairperson, if any, or in his or her absence, by the Vice Chairperson, if any, or in his or her absence, by the Chief Executive Officer, or in his or her absence, by the President, or in his or her absence, by a Vice President, or in the absence of the foregoing persons by a chairperson designated by the Board, or in the absence of such designation, by a chairperson chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her absence, the chairperson of the meeting may appoint any person to act as secretary of the meeting. Unless otherwise determined by the Board prior to the meeting, the presiding person of any meeting of stockholders will also determine the order of business and have the authority in his or her sole discretion to determine the rules of procedure and regulate the conduct of the meeting, including without limitation by: (a) imposing restrictions on the persons (other than stockholders of the Corporation or their duly appointed proxy holders) that may attend the meeting; (b) ascertaining whether any stockholder or his or her proxy holder may be excluded from the meeting based upon any determination by the presiding officer, in his or her sole discretion, that any such person has disrupted or is likely to disrupt the proceedings thereat; (c) determining the circumstances in which any person may make a statement or ask questions at the meeting; (d) ruling on all procedural questions that may arise during or in connection with the meeting; (e) determining whether any nomination or business proposed to be brought before the meeting has been properly brought before the meeting; and (f) determining the time or times at which the polls for voting at the meeting will be opened and closed.
10. Notice of Stockholder Proposals.
(a) Business to Be Conducted at Annual Meeting. At an annual meeting of stockholders, only such business may be conducted as has been properly brought before the meeting. To be properly brought before an annual meeting, business (other than the nomination of a person for election as a director, which is governed by Section 11, and, to the extent applicable, Section 12), must be (i) brought before the meeting by or at the direction of the Board or (ii) otherwise properly brought before the meeting by a stockholder who (A) has complied with all applicable requirements of this Section 10 and Section 12 in relation to such business, (B) was a stockholder of record of the Corporation at the time of giving the notice required by Section 12(a) and is a stockholder of record of the Corporation at the time of the annual meeting, and (C) is entitled to vote at the annual meeting. For the avoidance of doubt, the foregoing clause (ii) will be the exclusive means for a stockholder to submit business before an annual meeting of stockholders (other than proposals properly made in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended (such act, and the rules and regulations promulgated thereunder, the “Exchange Act”) and included in the notice of meeting given by or at the direction of the Board).
(b) Required Form for Stockholder Proposals. To be in proper form, regardless of whether the subject matter is already the subject of any notice to stockholders from the Board, a stockholder’s notice to the Secretary must set forth in writing, on the form provided to the stockholder upon written request to the Secretary and verification that the requesting party is a stockholder or is acting on behalf of a stockholder, including the following information, which must be updated and supplemented, if necessary, so that the information provided or required to be provided will be true and correct on the record date of the annual meeting and as of such date that is ten (10) business days prior to the annual meeting or any adjournment or postponement thereof; which update shall be delivered to the Secretary no later than five (5) business days after the record date for the annual meeting and not later than eight (8) business days prior to the date of the annual meeting.
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(i) Information Regarding the Proposing Person. As to each Proposing Person (as such term is defined in Section 12(d)(ii)):
(A) the name and address of such Proposing Person, as they appear on the Corporation’s stock transfer book;
(B) the class, series and number of shares of the Corporation directly or indirectly beneficially owned or held of record by such Proposing Person (including any shares of any class or series of the Corporation as to which such Proposing Person has a right to acquire beneficial ownership, whether such right is exercisable immediately or only after the passage of time);
(C) a representation (1) that the stockholder giving the notice is a holder of record of stock of the Corporation entitled to vote at the annual meeting and intends to appear at the annual meeting to bring such business before the annual meeting and (2) as to whether any Proposing Person intends to deliver a proxy statement and form of proxy to holders of at least the percentage of shares of the Corporation entitled to vote and required to approve the proposal and, if so, identifying such Proposing Person;
(D) a description of any (1) option, warrant, convertible security, stock appreciation right or similar right or interest (including any derivative securities, as defined under Rule 16a-1 under the Exchange Act or other synthetic arrangement having characteristics of a long position), assuming for purposes of these Bylaws presently exercisable, with an exercise or conversion privilege or a settlement or payment mechanism at a price related to any class or series of securities of the Corporation or with a value derived in whole or in part from the value of any class or series of securities of the Corporation, whether or not such instrument or right is subject to settlement in whole or in part in the underlying class or series of securities of the Corporation or otherwise, directly or indirectly held of record or owned beneficially by such Proposing Person and whether or not such Proposing Person may have entered into transactions that hedge or mitigate the economic effects of such security or instrument and (2) each other direct or indirect right or interest that may enable such Proposing Person to profit or share in any profit derived from, or to manage the risk or benefit from, any increase or decrease in the value of the Corporation’s securities, in each case regardless of whether (x) such right or interest conveys any voting rights in such security to such Proposing Person, (y) such right or interest is required to be, or is capable of being, settled through delivery of such security, or (z) such Proposing Person may have entered into other transactions that hedge the economic effect of any such right or interest (any such right or interest referred to in this clause (D) being a “Derivative Interest”);
(E) any proxy, contract, agreement, arrangement, understanding or relationship pursuant to which the Proposing Person has a right to vote any shares of the Corporation or which has the effect of increasing or decreasing the voting power of such Proposing Person;
(F) any contract, agreement, arrangement, understanding or relationship including any repurchase or similar so called “stock borrowing” agreement or arrangement, the purpose or effect of which is to mitigate loss, reduce economic risk or increase or decrease voting power with respect to any capital stock of the Corporation or which provides any party, directly or indirectly, the opportunity to profit from any decrease in the price or value of the capital stock of the Corporation;
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(G) any material pending or threatened legal proceeding involving the Corporation, any affiliate of the Corporation or any of their respective directors or officers, to which such Proposing Person or its affiliates is a party;
(H) any rights directly or indirectly held of record or beneficially by the Proposing Person to dividends on the shares of the Corporation that are separated or separable from the underlying shares of the Corporation;
(I) any equity interests, including any convertible, derivative or short interests, in any principal competitor of the Corporation;
(J) any performance-related fees (other than an asset-based fee) to which the Proposing Person or any affiliate or immediate family member of the Proposing Person may be entitled as a result of any increase or decrease in the value of shares of the Corporation or Derivative Interests;
(K) a representation whether the stockholder, the beneficial owner, if any, on whose behalf the nomination or other business proposal is being made, any control person, or any other participant (as defined in Item 4 of Schedule 14A under the Exchange Act) will engage in a solicitation with respect to such nomination or other business proposal and, if so, the name of each participant in such solicitation; and a statement: (1) confirming whether, the stockholder, beneficial owner, or any control person intends, or is part of a group that (x) in the case of a nomination, intends to solicit proxies or votes in support of such director nominees or nomination in accordance with Rule 14a-19 under the Exchange Act, including but not limited to, delivering a proxy statement and form of proxy and soliciting at least the percentage of the voting power of all of the shares of the stock of the Corporation required under applicable law to elect the nominee, and (y) in the case of a business proposal, intends to deliver a proxy statement and form of proxy and solicit at least the percentage of voting power of all of the shares of stock of the Corporation required under applicable law to approve the proposal; and (2) whether or not any such stockholder, beneficial owner, or any control person intends to otherwise solicit proxies from stockholders in support of such nomination or other business proposal; and
(L) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing required pursuant to Section 14(a) of the Exchange Act to be made in connection with a general solicitation of proxies or consents by such Proposing Person in support of the business proposed to be brought before the meeting.
(ii) Information Regarding the Proposal: As to each item of business that the stockholder giving the notice proposes to bring before the annual meeting:
(A) a description in reasonable detail of the business desired to be brought before the annual meeting and the reasons why such stockholder or any other Proposing Person believes that the taking of the action or actions proposed to be taken would be in the best interests of the Corporation and its stockholders;
(B) a description in reasonable detail of any material interest of any Proposing Person in such business and a description in reasonable detail of all agreements, arrangements and understandings among the Proposing Persons or between any Proposing Person and any other person or entity (including their names) in connection with the proposal; and
(C) the text of the proposal or business (including the text of any resolutions proposed for consideration).
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(c) No Right to Have Proposal Included. A stockholder is not entitled to have its proposal included in the Corporation’s proxy statement and form of proxy solely as a result of such stockholder’s compliance with the foregoing provisions of this Section 10.
(d) Requirement to Attend Annual Meeting. If a stockholder does not appear at the annual meeting to present its proposal, such proposal will be disregarded (notwithstanding that proxies in respect of such proposal may have been solicited, obtained or delivered).
11. Notice of Directors Nominations.
(a) Nomination of Directors. Subject to the rights, if any, of any series of Preferred Stock to nominate or elect directors under circumstances specified in a Preferred Stock Designation, only persons who are nominated in accordance with the procedures set forth in this Section 11 will be eligible to serve as directors. Nominations of persons for election as directors of the Corporation may be made only at an annual meeting of stockholders and only (i) by or at the direction of the Board or (ii) by a stockholder who (A) has complied with all applicable requirements of this Section 11 and Section 12 in relation to such nomination, (B) was a stockholder of record of the Corporation at the time of giving the notice required by Section 12(a) and is a stockholder of record of the Corporation at the time of the annual meeting, (C) is entitled to vote at the annual meeting and (D) subject to Section 12, has nominated a number of nominees that does not exceed the number of directors that will be elected at such meeting.
(b) Required Form for Director Nominations. To be in proper form, a stockholder’s notice to the Secretary must set forth in writing, substantially in the form provided to the stockholder upon written request to the Secretary, which form shall be provided only upon the receipt of evidence reasonably satisfactory to the Secretary verifying that the requesting party is a stockholder or is acting on behalf of a stockholder:
(i) Information Regarding the Nominating Person. As to each Nominating Person (as such term is defined in Section 12(d)(iii)), the information set forth in Section 10(b)(i) (except that for purposes of this Section 11, the term “Nominating Person” will be substituted for the term “Proposing Person” in all places where it appears in Section 10(b)(i) and any reference to “business” or “proposal” therein will be deemed to be a reference to the “nomination” contemplated by this Section 11).
(ii) Information Regarding the Nominee: As to each person whom the stockholder giving notice proposes to nominate for election as a director:
(A) all information with respect to such proposed nominee that would be required to be set forth in a stockholder’s notice pursuant to Section 10(b)(i) if such proposed nominee were a Nominating Person;
(B) all information relating to such proposed nominee that would be required to be disclosed in a proxy statement or other filing required pursuant to Section 14(a) under the Exchange Act to be made in connection with a general solicitation of proxies for an election of directors in a contested election (including such proposed nominee’s written consent to be named in the proxy statement as a nominee and to serve as a director if elected);
(C) a reasonably detailed description of all direct and indirect compensation and other material monetary agreements, arrangements or understandings during the past three years, any other material relationships, between or among such Nominating Person and its affiliates and associates, or others acting in concert therewith, on the one hand, and each proposed nominee and his or her affiliates, associates or others acting in concert therewith, on the other hand, including all information that would be required to be disclosed pursuant to Items 403 and 404 under Regulation S-K if the stockholder giving the notice or any other Nominating Person were the “registrant” for purposes of such rule and the proposed nominee were a director or executive officer of such registrant;
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(D) a completed questionnaire (in the form provided by the Secretary upon written request) with respect to the identity, background and qualification of the proposed nominee and the background of any other person or entity on whose behalf the nomination is being made; and
(E) a written representation and agreement (in the form provided by the Secretary upon written request) that the proposed nominee (1) is qualified and if elected intends to serve as a director of the Corporation for the entire term for which such proposed nominee is standing for election, (2) is not and will not become a party to (x) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how the proposed nominee, if elected as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or (y) any Voting Commitment that could limit or interfere with the proposed nominee’s ability to comply, if elected as a director of the Corporation, with the proposed nominee’s fiduciary duties under applicable law, (3) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed therein, and (4) has read and, if elected as a director of the Corporation, the proposed nominee would be in compliance and will comply, with all applicable publicly disclosed corporate governance, ethics, conflict of interest, confidentiality and stock ownership and trading policies and guidelines of the Corporation.
The Corporation may require any proposed nominee to furnish such other information as may be reasonably required by the Corporation to determine the qualifications and eligibility of such proposed nominee to serve as a director.
(c) No Right to Have Nominees Included. A stockholder is not entitled to have its nominees included in the Corporation’s proxy statement solely as a result of such stockholder’s compliance with the foregoing provisions of this Section 11.
(d) Requirement to Attend Annual Meeting. If a stockholder does not appear at the annual meeting to present its nomination, such nomination will be disregarded (notwithstanding that proxies in respect of such nomination may have been solicited, obtained or delivered).
12. Additional Provisions Relating to the Notice of Stockholder Business and Director Nominations.
(a) Timely Notice. To be timely, a stockholder’s notice required by Section 10(a) or Section 11(a) must be delivered to or mailed and received by the Secretary at the principal executive offices of the Corporation not less than one hundred twenty (120) nor more than one hundred fifty (150) days prior to the first anniversary of the preceding year’s annual meeting of stockholders (which date shall, for purposes of the Corporation’s annual meeting of stockholders in the year 2026, be deemed to have occurred on [●], 2025); provided, however, that if the date of the annual meeting is scheduled for a date more than thirty (30) days prior to or more than sixty (60) days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must be so delivered not later than the close of business on the later of the one hundred twentieth (120^th^) day prior to such annual meeting and the tenth (10th) day following the day on which public disclosure of the date of such meeting is first made. In no event will a recess or adjournment of an annual meeting (or any announcement of any such recess or adjournment) commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above. Notwithstanding the foregoing, in the event the number of directors to be elected to the Board at the annual meeting is increased by the Board, and there is no public announcement by the Corporation naming the nominees for the additional directors at least one hundred thirty (130) days prior to the first anniversary of the date on which the Corporation held the preceding year’s annual meeting of stockholders, a stockholder’s notice pursuant to Section 11(a) will be considered timely, but only with respect to nominees for the additional directorships, if it is delivered to or mailed and received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth (10th) day following the day on which such public announcement is first made by the Corporation.
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(b) Updating Information in Notice. A stockholder providing notice of business proposed to be brought before an annual meeting pursuant to Section 10 or notice of any nomination to be made at an annual meeting pursuant to Section 11 must further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to Section 10 or Section 11, as applicable, is true and correct as of the record date for notice of the meeting and as of the date that is ten (10) days prior to the meeting or any recess, adjournment or postponement thereof. Any such update and supplement must be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation, as promptly as practicable.
(c) Determinations of Form, Effect of Noncompliance, Etc.
(i) The presiding officer of any annual meeting will, if the facts warrant, determine that a proposal was not made in accordance with the procedures prescribed by Section 10 and this Section 12 or that a nomination was not made in accordance with the procedures prescribed by Section 11 and this Section 12, and if he or she should so determine, he or she will so declare to the meeting and the defective proposal or nomination, as applicable, will be disregarded. Notwithstanding anything in these Bylaws to the contrary: (i) no nominations shall be made or business shall be conducted at any annual meeting or special meeting except in accordance with the procedures set forth in Sections 10, 11 and 12, and (ii) unless otherwise required by law, if a Proposing Person intending to propose business or a Nominating Person intending to make nominations at an annual meeting or special meeting pursuant to Sections 10, 11 and 12, as applicable, does not provide the information required under Sections 10, 11 and 12 to the Corporation in accordance with the applicable timing requirements set forth in these Bylaws, or the Proposing Person or Nominating Person (or a qualified representative thereof) 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.
(ii) Notwithstanding the provisions of Sections 10, 11 and 12 and unless otherwise required by law, (A) if any Proposing Person (1) provides notice pursuant to Rule 14a-19(b) under the Exchange Act with respect to any nomination or business proposal and (2) subsequently fails to comply with the requirements of Rule 14a-19 under the Exchange Act (or fails to timely provide reasonable evidence sufficient to satisfy the Corporation that such Proposing Person has met the requirements of Rule 14a-19(a)(3) under the Exchange Act), then each applicable nomination or business proposal shall be disregarded, notwithstanding that the applicable nominee is included as a nominee in the Corporation’s proxy statement, notice of meeting or other proxy materials for any annual meeting (or any supplement thereto) and notwithstanding that proxies or votes in respect of the election of such proposed nominees may have been received by the Corporation (which proxies and votes shall be disregarded).
(d) Certain Definitions.
(i) For purposes of Sections 10, 11 and 12, “public disclosure” means disclosure in a press release reported by the Dow Jones News Service, Bloomberg, Associated Press or comparable national news service or in a document filed by the Corporation with the U.S. Securities and Exchange Commission (the “SEC”) pursuant to Exchange Act or furnished by the Corporation to stockholders.
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(ii) For purposes of Sections 10 and 12, “Proposing Person” means (A) the stockholder providing the notice of business proposed to be brought before an annual meeting, (B) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the business proposed to be brought before the annual meeting is given, and (C) any Affiliate or Associate (each within the meaning of Rule 12b-2 under the Exchange Act) of such stockholder or beneficial owner.
(iii) For purposes of Sections 11 and 12, “Nominating Person” means (A) the stockholder providing the notice of the nomination proposed made to be at an annual meeting, (B) the beneficial owner or beneficial owners, if different, on whose behalf the notice of nomination proposed to be made at the annual meeting is given, and (C) any Affiliate or Associate (each within the meaning of Rule 12b-2 under the Exchange Act) of such stockholder or beneficial owner.
13. Record Dates.
(a) Voting Record Dates. In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders, the Board may fix a record date, which will not precede the date upon which the Board resolution fixing the same is adopted and will not be more than sixty (60) nor less than ten (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 or to vote at a meeting of stockholders will be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of the stockholders will apply to any recess or adjournment of the meeting; provided, however, that the Board may fix a new record date for the determination of stockholders entitled to vote at the recessed or adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to such notice of such recessed or 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 13(a) at the recessed or adjourned meeting.
(b) Payment Record Dates. 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 will not be more than sixty (60) days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose will be at the close of business on the day on which the Board adopts the resolution relating thereto.
(c) Identity of Registered Holder. The Corporation will be entitled to treat the person in whose name any share of its stock is registered as the owner thereof for all purposes, and will not be bound to recognize any equitable or other claim to, or interest in, such share on the part of any other person, whether or not the Corporation has notice thereof, except as expressly provided by applicable law.
14. Recesses and Adjournments. A meeting of stockholders may be recessed or adjourned from time to time by the presiding officer of the meeting. Upon any recessed or adjourned meeting being reconvened, any business may be transacted which properly could have been transacted in the absence of such recess or adjournment.
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DIRECTORS
15. Function. The business and affairs of the Corporation will be managed under the direction of the Board.
16. Number, Election and Terms. Subject to the rights, if any, of any series of Preferred Stock to elect additional directors under circumstances specified in a Preferred Stock Designation, and to the minimum and maximum number of authorized directors provided in the Certificate of Incorporation, the authorized number of directors may be fixed from time to time only by a resolution adopted by the Board. The directors, other than those who may be elected by the holders of any series of the Preferred Stock, will be classified with respect to the time for which they severally hold office in accordance with the provisions of the Certificate of Incorporation.
17. Removal. Directors may be removed from office only in the manner provided in the Certificate of Incorporation and applicable law.
18. Resignation. Any director may resign at any time upon notice given in writing or by electronic transmission to the Chairperson, if any, the President, the Chief Executive Officer or the Secretary. Any resignation is effective when the resignation is delivered to the Corporation unless the resignation specifies a later effective date or an effective date that is contingent upon the occurrence or non-occurrence of one or more specified events.
19. Regular Meetings. Regular meetings of the Board may be held immediately after the annual meeting of the stockholders and at such other time and place either within or without the State of Delaware as may from time to time be determined by the Board. Notice of regular meetings of the Board need not be given.
20. Special Meetings. Special meetings of the Board of Directors may be held at any time or place within or without the State of Delaware whenever called by the Chief Executive Officer, President, any Vice President, the Secretary, or by any member of the Board.
21. Quorum; Voting. At all meetings of the Board, a majority of the directors at any time in office will constitute a quorum of the Board for the transaction of business. Except for action to be taken by committees of the Board as provided in Section 23, and except as otherwise provided by the DGCL, the Certificate of Incorporation or these Bylaws, the act of a majority of the directors present at any meeting at which there is a quorum will be the act of the Board. If a quorum is not present at any meeting of the Board, the directors present thereat may adjourn the meeting from time to time to another place, time, or date, without notice other than announcement at the meeting, until a quorum is present. Unless otherwise restricted by the Certificate of Incorporation, these Bylaws or applicable law, any action required to be taken at a meeting of the Board or any committee thereof, may be taken without a meeting if all directors or members of such committee, as the case may be, consent thereto in writing or by electronic transmission and any consent may be documented, signed and delivered in accordance with applicable law. After an action is taken by unanimous written consent, such consent shall be filed with the minutes of proceedings for the Board or committee in accordance with applicable law.
22. Participation in Meetings by Remote Communications. Members of the Board or any committee designated by the Board may participate in a meeting of the Board or any such committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting will constitute presence in person at the meeting.
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Committees. The Board may designate one (1) or more committees, each committee to consist of one (1) or more of the directors of the Board. The Board may designate one (1) or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent permitted by law and to the extent provided in the resolution of the Board, shall have and may exercise all 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 which may require it. Unless the Board provides otherwise, each committee designated by the Board may make, alter and repeal rules and procedures for the conduct of its business. In the absence of such rules and procedures, each committee shall conduct its business in the same manner as the Board conducts its business. Any resolution of the Board establishing or directing any committee of the Board or establishing or amending the charter of any such committee may establish requirements or procedures relating to the governance and/or operation of such committee that are different from, or in addition to, those set forth in these Bylaws and, to the extent that there is any inconsistency between these Bylaws and any such resolution or charter, the terms of such resolution or charter shall be controlling.
24. Compensation. The Board may establish the compensation of directors, including without limitation compensation for membership on the Board and on committees of the Board, attendance at meetings of the Board or committees of the Board, and for other services provided to the Corporation or at the request of the Board.
25. Rules. The Board may adopt rules and regulations for the conduct of meetings and the oversight of the management of the affairs of the Corporation.
26. Chairperson; Vice Chairperson. The Board of Directors may appoint from its members a Chairperson and a Vice Chairperson, neither of whom need be an employee or officer of the Corporation. If the Board of Directors appoints a Chairperson, such Chairperson shall perform such duties and possess such powers as are assigned by the Board of Directors. If the Board of Directors appoints a Vice Chairperson, such Vice Chairperson shall perform such duties and possess such powers as are assigned by the Board of Directors. Unless otherwise provided by the Board of Directors, the Chairperson or, in his or her absence, the Vice Chairperson, if any, shall preside at all meetings of the Board of Directors.
27. Indemnification.
(a) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any 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 of whom he or she is the legal representative, is or was a director or an officer of the Corporation (including any constituent corporation absorbed in a merger) or, while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation (including any such constituent corporation) as a director, officer, employee, agent or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, 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, agent or trustee or in any other capacity while serving as a director, officer, employee, agent or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any such amendment, if permitted, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except with respect to proceedings to enforce rights to indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall indemnify any such 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.
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(b) Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 27(a), 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 attorney’s fees) incurred by indemnitee in appearing at, participating in or defending any such proceeding in advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Section 27 (which shall be governed by Section 27(c) (hereinafter an “advancement of expenses”)); provided, however, that, if the DGCL requires or in the case of an advancement of expenses made in a proceeding brought to establish or enforce a right to indemnification or advancement of expenses, 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 solely upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to be indemnified under Section 27(a) and Section 27(b) or otherwise.
(c) Right of Indemnitee to Bring Suit. If a claim under Section 27(a) or Section 27(b) is not paid in full by the Corporation within (i) sixty (60) days after a written claim for indemnification has been received by the Corporation or (ii) thirty (30) days after a claim for an advancement of expenses has been received by the Corporation, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim or to obtain advancement of expenses, as applicable. To the fullest extent permitted by law, if successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Section 27 or otherwise shall be on the Corporation.
(d) Indemnification Not Exclusive. The provision of indemnification to or the advancement of expenses and costs to any indemnitee under this Section 27, or the entitlement of any indemnitee to indemnification or advancement of expenses and costs under this Section 27, shall not limit or restrict in any way the power of the Corporation to indemnify or advance expenses and costs to such indemnitee in any other way permitted by law or be deemed exclusive of, or invalidate, any right to which any indemnitee seeking indemnification or advancement of expenses and costs may be entitled under any law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such indemnitee’s capacity as an officer, director, employee or agent of the Corporation and as to action in any other capacity.
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(e) Corporate Obligations; Reliance. The rights granted pursuant to the provisions of this Section 27 shall vest at the time a person becomes a director or officer of the Corporation and shall be deemed to create a binding contractual obligation on the part of the Corporation to the persons who from time to time are elected as officers or directors of the Corporation, and such persons in acting in their capacities as officers or directors of the Corporation or any subsidiary shall be entitled to rely on such provisions of this Section 27 without giving notice thereof to the Corporation. Such rights shall continue as to an indemnitee who has ceased to be a director or officer and shall inure to the benefit of the indemnitee’s heirs, executors and administrators. Any amendment, alteration or repeal of this Section 27 that adversely affects any right of an indemnitee or its successors shall be prospective only and shall not limit, eliminate, or impair any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment or repeal.
(f) Insurance. The Corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
(g) Indemnification of Employees and Agents of the Corporation and Others. 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 person (in addition to an indemnitee) serving at the request of the Corporation as an officer, director, employee or agent of any other enterprise to the fullest extent of the provisions of this Section 27 with respect to the indemnification and advancement of expenses of indemnitees hereunder.
NOTICES
28. Generally.
(a) Form of Notices. Except as otherwise provided by law, these Bylaws, or the Certificate of Incorporation, whenever by law or under the provisions of the Certificate of Incorporation or these Bylaws notice is required to be given to any director or stockholder, it will not be construed to require personal notice, but such notice may be given in writing, by mail or courier service or, to the extent permitted by the DGCL, by electronic transmission, addressed to such director or stockholder. Any notice sent to stockholders by mail or courier service shall be sent to the address of such stockholder as it appears on the records of the Corporation, with postage thereon prepaid, and such notice will be deemed to be given at the time when the same is deposited in the United States mail or with the courier service. Notices sent by electronic transmission shall be deemed effective as set forth in Section 232 of the DGCL. For purposes of this Section 28, “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.
(b) Notices to Directors. Notices to directors may be given by mail or courier service, telephone, electronic transmission or as otherwise may be permitted by these Bylaws.
29. Waivers. Whenever any notice is required to be given by law or under the provisions of the Certificate of Incorporation or these Bylaws, a waiver thereof in writing, signed by the person entitled to such notice, or a waiver by electronic transmission by the person entitled to such notice, whether before or after the time of the event for which notice is to be given, will be deemed equivalent to such notice. Attendance of a person at a meeting will constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
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OFFICERS
30. Generally.
(a) The officers of the Corporation will be elected by the Board and will consist of officers with titles and duties as determined by the Board, but in any case shall include a Chief Executive Officer (which may be the President), a President, a Treasurer and a Secretary, all of whom shall be elected at the annual meeting of the Board. The Board may also choose one or more Vice Presidents (who may be given particular designations with respect to authority, function, or seniority), one or more Assistant Secretaries, one or more Assistant Treasurers and such other officers as the Board may from time to time determine. Notwithstanding the foregoing, the Board may authorize the Chief Executive Officer to appoint any person to any office other than the Secretary or Treasurer. Any number of offices may be held by the same person. Any of the offices may be left vacant from time to time as the Board may determine. In the case of the absence or disability of any officer of the Corporation or for any other reason deemed sufficient by a majority of the Board, the Board may delegate the absent or disabled officer’s powers or duties to any other officer or to any director.
(b) Chief Executive Officer. Unless the Board has designated another person as the Corporation’s Chief Executive Officer, the President shall be the Chief Executive Officer of the Corporation. The Chief Executive Officer shall have general charge and supervision of the business of the Corporation subject to the direction of the Board and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to such officer by the Board. The Chief Executive Officer may sign bonds, mortgages, certificates for shares and all other contracts and documents whether or not under the seal of the Corporation except in cases where the signing and execution thereof shall be expressly delegated by law, by the Board or by these Bylaws to some other officer or agent of the Corporation.
(c) President. In the absence of the Chief Executive Officer or in the event of his inability or refusal to act, the President shall perform the duties of the Chief Executive Officer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer. At all other times the President shall have the active management of the business of the Corporation under the general supervision of the Chief Executive Officer or the Board of Directors. The President shall have concurrent power with the Chief Executive Officer to sign bonds, mortgages, certificates for shares and other contracts and documents, whether or not under the seal of the Corporation except in cases where the signing and execution thereof shall be expressly delegated by law, by the Board, or by these Bylaws to some other officer or agent of the Corporation. In general, the President shall perform all duties incident to the office of president and such other duties as the Chief Executive Officer (if the President is not the Chief Executive Officer) or the Board may from time to time prescribe.
(d) Vice Presidents. Each Vice President shall have such powers and perform such duties as may be assigned to him or her from time to time by the Board or the Chief Executive Officer (or the President if there is no Chief Executive Officer). The Board may assign to any Vice President the title of Executive Vice President, Senior Vice President or any other title selected by the Board.
(e) Secretary; Assistant Secretary. The Secretary, or an Assistant Secretary, shall attend all sessions of the Board and all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose, and shall perform like duties for committees when required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and meetings of the Board, and shall perform such other duties as may be assigned by the Board. The Secretary, or an Assistant Secretary, shall keep in safe custody the seal of the Corporation and have authority to affix the seal to all documents requiring it and attest to the same.
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(f) Treasurer; Assistant Treasurer. The Treasurer, or an Assistant Treasurer, shall have the custody of the corporate funds and other property of the Corporation, except as otherwise provided by the Board, and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board. The Treasurer, or an Assistant Treasurer, shall disburse the funds of the Corporation as may be ordered by the Board, taking proper vouchers for such disbursements, and whenever requested by the Board, shall render an account of all his or her transactions as treasurer and of the financial condition of the Corporation, and shall perform such other duties as may be assigned by the Board.
(g) Delegation of Authority. The Board may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding the provisions herein.
(h) Voting Securities Owned by the Corporation. Powers of attorney, proxies, waivers of notice of meeting, consents 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 Chief Executive Officer, the President, any Vice President or any other officer authorized to do so by the Board and 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 company in which the Corporation may own securities and at any such meeting 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 if present. The Board may, by resolution, from time to time confer like powers upon any other person or persons.
31. Compensation. The compensation of all executive officers of the Corporation will be fixed by the Board or by a committee of the Board. The Board may fix or delegate the power to fix, the compensation of other officers and agents of the Corporation to an officer of the Corporation.
32. Succession. The officers of the Corporation will hold office until their successors are elected and qualified or until such officer’s earlier death, resignation or removal. Any officer may be removed at any time by the Board. Any vacancy occurring in any office of the Corporation may be filled by the Board or may, in the Board’s discretion, be left unfilled for such period as the Board may determine other than the offices of Chief Executive Officer, President, Treasurer and Secretary. Any officer of the Corporation may resign at any time by giving written notice of his or her resignation to the Chief Executive Officer, the President or the Secretary. Such resignation shall be effective upon receipt unless such notice provides that the resignation is effective at some later time or upon the occurrence of some later event.
33. Authority and Duties. Each of the officers of the Corporation will have such authority and will perform such duties as are customarily incident to their respective offices or as may be specified from time to time by the Board.
STOCK
34. Certificates. The Board may provide by resolution or resolutions that some or all of any or all classes or series of the stock of the Corporation shall be uncertificated shares. Certificates, if any, representing shares of stock of the Corporation will be in such form as is determined by the Board, subject to applicable legal requirements. Each such certificate shall be numbered and shall be signed by, or in the name of the Corporation by, the Chairperson, if any, or the President or the Chief Executive Officer or the Chief Financial Officer, and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary. Any or all of the signatures on a certificate may be a facsimile or electronic signature. In case any officer, transfer agent or registrar who has signed or whose facsimile or electronic signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.
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Lost, Stolen or Destroyed Certificates. The Secretary may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact, satisfactory to the Secretary, by the person claiming the certificate of stock to be lost, stolen or destroyed. As a condition precedent to the issuance of a new certificate or certificates, the Secretary may require the owners of such lost, stolen or destroyed certificate or certificates to give the Corporation a bond in such sum and with such surety or sureties as the Secretary may direct as indemnity against any claims that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed or the issuance of the new certificate or uncertificated shares.
36. Transfers. Shares of stock of the Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Transfers of shares shall be made (a) upon the books of the Corporation only by the holder of record thereof, or by a duly authorized agent, transferee or legal representative and (b) in the case of certificated shares, upon the surrender to the Corporation of the certificate or certificates for such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the Corporation or is transfer agent may reasonably require. No transfer shall be made that is inconsistent with the provisions of applicable law.
GENERAL
37. Fiscal Year. The fiscal year of the Corporation will end on December 31 of each calendar year or such other date as may be fixed from time to time by the Board.
38. Reliance upon Books, Reports and Records. Each director, each member of a committee designated by the Board, and each officer of the Corporation will, in the performance of his or her duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports, or statements presented to the Corporation by any of the Corporation’s officers or employees, or committees of the Board, or by any other person or entity as to matters the director, committee member, or officer believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
39. Amendments. Notwithstanding any other provision of these Bylaws, any alteration, amendment or repeal of these Bylaws, or the adoption of new Bylaws, shall require the approval of the Board or the stockholders of the Corporation as provided by the Certificate of Incorporation (including any applicable Preferred Stock Designation) and applicable law.
40. Severability. If any provision of these Bylaws shall be held to be invalid, illegal, unenforceable or in conflict with the provisions of the Certificate of Incorporation, then such provision shall nonetheless be enforced to the maximum extent possible consistent with such holding and the remaining provisions of these Bylaws (including without limitation, all portions of any section of these Bylaws containing any such provision held to be invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation, that are not themselves invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation) shall remain in full force and effect.
41. Certain Defined Terms. Capitalized terms used herein and not otherwise defined have the meanings given to them in the Certificate of Incorporation. The use of the term “days” within these Bylaws, other than when referred to as “business days”, shall mean calendar days. The use of “business days” shall mean days other than Saturday, Sunday, and any day designated as a federal holiday as observed by the SEC. The use of “including” shall mean, including without limitation.
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