8-K
Vivani Medical, Inc. (VANI)
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): July 5, 2023
VIVANI
MEDICAL, INC.
(Exact
name of registrant as specified in its charter)
| Delaware | 001-36747 | 02-0692322 |
|---|---|---|
| (State<br><br> or other jurisdiction of incorporation) | (Commission<br><br> File Number) | (IRS<br><br> Employer Identification No.) |
| 5858Horton Street, Suite 280<br><br><br> <br>Emeryville,California | 94608 | |
| (Address<br><br> of principal executive offices) | (Zip<br><br> Code) |
Registrant’s
telephone number, including area code: (415) 506-8462
(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<br><br> communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material<br><br> pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement<br><br> communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement<br><br> communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
|---|---|---|
| Common<br><br> Stock | VANI | Nasdaq<br><br> Capital Market |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 3.03 | Material Modification to Rights of Security Holders. |
|---|
On
July 6, 2023, Vivani Medical, Inc. (“us,” “we,” “our,” “Vivani,”
or the “Company”) changed its state of incorporation from the State of California to the State of Delaware
(the “Reincorporation”) by means of a Plan of Conversion, effective July 5, 2023 (the “Plan of Conversion”).
The Reincorporation, including the principal terms of the Plan of Conversion, was submitted to a vote of, and approved by, the Company’s stockholders
at the Company’s 2023 Annual Meeting of Stockholders held on June 15, 2023 (the “2023 Annual Meeting”),
as set forth in the Company’s revised definitive proxy statement on Schedule 14A filed with the U.S. Securities and Exchange
Commission (the “SEC”) on May 1, 2023 (the “Definitive Proxy Statement”).
The
Reincorporation was accomplished by filing: (i) a Certificate of Conversion with the Secretary of State of the State of California
(the “California Certificate of Conversion”); (ii) a Certificate of Conversion with the Secretary of State
of the State of Delaware (the “Delaware Certificate of Conversion”); and (iii) a Certificate of Incorporation
with the Secretary of State of the State of Delaware (the “Certificate of Incorporation”). In connection with
the Reincorporation, the Company’s board of directors adopted new bylaws (the “Bylaws”).
Upon
the effectiveness of the Reincorporation on July 6, 2023:
| ● | The<br><br> Company’s affairs ceased to be governed by the California Corporations Code and the Company’s California articles<br><br> of incorporation and bylaws, in each case as in effect immediately prior to the Reincorporation, and the Company’s affairs<br><br> became governed by the Delaware General Corporation Law (the “DGCL”), the Certificate of Incorporation,<br><br> and the Bylaws; |
|---|---|
| ● | The resulting Delaware<br><br> corporation (“Vivani-Delaware”) (i) is deemed to be the same entity as the Company as incorporated in California<br><br> (“Vivani-California”) for all purposes under California and Delaware law, (ii) continues to have all of<br><br> the rights, privileges, and powers of Vivani-California, (iii) continues to possess all of the properties of Vivani-California,<br><br> and (iv) continues to have all of the debts, liabilities, and duties of Vivani-California; |
| ● | Each (i) issued<br><br> and outstanding share of common stock. no par value per share, of Vivani-California automatically became an issued and outstanding<br><br> share of common stock, par value $0.0001 per share, of Vivani-Delaware, (ii) options exercisable for common stock of Vivani-California<br><br> automatically became equivalent options exercisable for shares of common stock of Vivani-Delaware, (iii) warrants<br><br> or other rights to acquire shares of common stock Vivani-California automatically became equivalent warrants or other rights<br><br> to acquire shares of common stock of Vivani-Delaware, and (iv) outstanding certificates representing shares of Vivani-California<br><br> common stock shall be deemed equivalent certificates representing shares of Vivani-Delaware common stock; |
| ● | All employee benefit,<br><br> stock option plans and incentive plans of Vivani-California continue to be employee benefit, stock option plans and incentive<br><br> plans of Vivani-Delaware; and |
| ● | Each director and<br><br> officer of Vivani-California continues to hold his or her respective office with Vivani-Delaware. |
Certain
rights of the Company’s stockholders changed as a result of the Reincorporation, and such changes are described in the Definitive
Proxy Statement under the sections entitled “Proposal 3: Reincorporation From California to Delaware” and “Proposals
4A-4F: Governance Provisions of the Company’s Certificate of Incorporation And Bylaws Relating to the Reincorporation”
more specifically, the heading thereunder entitled, “Significant Differences Between the Charters and Bylaws of VivaniCalifornia and Vivani Delaware and Between the Corporate Laws of California and Delaware,” and such description is incorporated
by reference in this Item 3.03. Additionally, a more detailed description of the Plan of Conversion and the effects of
the Reincorporation is set forth in the Definitive Proxy Statement under the section entitled “Proposal 3: Reincorporation
From California to Delaware,” which description is incorporated by reference in this Item 3.03. The foregoing
description of the Plan of Conversion, the Certificate of Incorporation, the Bylaws, the California Certificate of Conversion,
and the Delaware Certificate of Conversion, is only a summary and is qualified in its entirety by reference to the full text of
the Plan of Conversion, the Certificate of Incorporation, the Bylaws, the California Certificate of Conversion, and the Delaware
Certificate of Conversion, which are filed as Exhibits 99.1, 3.1, 3.2, 3.3, and 3.4, respectively,
to this Current Report on Form 8-K and incorporated herein by reference.
The
Reincorporation does not affect the trading of the Company’s shares of common stock on the NASDAQ Capital Market in any
respect. The Company, as a Delaware corporation, will continue to file periodic reports and other documents as and when required
by the rules and regulations of the SEC.
Stockholders
who are holding their shares of common stock of the Company in electronic form at brokerage firms do not have to take any action
as a result of the Reincorporation. Stockholders holding paper certificates representing outstanding shares of common stock of
the Company also do not need to take any action as a result of the Reincorporation because each stock certificate continues to
represent the same number of shares of common stock of the Company as a Delaware corporation. Do not destroy your certificatesrepresenting Vivani-California shares as these now evidence shares of Vivani-Delaware.
The
Company believes that the Reincorporation will not affect any of the Company’s material contracts with any third parties,
and the Company’s rights and obligations under such material contractual arrangements will continue to be rights and obligations
of the Company after the Reincorporation. The Reincorporation did not result in any change in headquarters, business, jobs, management,
location of any of the offices or facilities, number of employees, assets, liabilities, or net worth (other than as a result of
the costs incident to the Reincorporation) of the Company.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
|---|
As
disclosed in Item 3.03 above, effective July 6, 2023, the Company changed its state of incorporation from California to
Delaware pursuant to the Plan of Conversion. As of that date, the rights of the Company’s stockholders began to be governed
by Delaware corporation laws, the Certificate of Incorporation, and the Bylaws. The Certificate of Incorporation and the Bylaws
are filed herewith as Exhibits 3.1 and 3.2, respectively, and are incorporated herein by reference. Certain rights
of the Company’s stockholders were changed as a result of the Reincorporation. A more detailed description of the Certificate
of Incorporation and Bylaws, and the changes in rights of the Company’s stockholders as a result of the Reincorporation,
is set forth in the Company’s Definitive Proxy Statement, which description is incorporated herein by reference.
The
information contained in Item 3.03 of this Current Report on Form 8-K is incorporated by reference in this Item 5.03.
| Item 8.01 | Other Events. |
|---|
Descriptionof Capital Stock
Vivani
Medical, Inc. (“us,” “we,” “our,” “Vivani,” or the
“Company”) currently has on file with the SEC (i) a Registration Statement on Form S-8 (No. 333-267271) that
registers shares of common stock to be issued to the Company’s officers and employees under the Company’s 2022 Omnibus
Incentive Plan, (ii) a shelf Registration Statement on Form S-3 (No. 333-256904) and (iii) a Registration Statement on Form S-3
(No. 333-255267) that relates to the resale of shares of common stock that may be offered for sale from time to time by the selling
stockholders named in the prospectus included as part of such registration statement. This Current Report on Form 8-K is automatically
incorporated by reference into the registration statements listed above, thereby amending such registration statements.
Our
common stock, par value $0.0001 per share (the “Common Stock”), is registered pursuant to Section 12(b) of
the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), and this Description of Capital
Stock shall be incorporated by reference into any Registration Statement on Form S-8 (or applicable successor forms) that may
be filed in the future by the Company with the SEC under the U.S. Securities Act of 1933, as amended (the “Securities
Act”), until and to the extent that such Description of Capital Stock is subsequently amended or modified by any amendment
or report filed by the Company with the SEC under the Exchange Act for the purpose of updating such description.
The
following summary of general terms and provisions of our capital stock does not purport to be complete. These descriptions are
in all respects subject to, and qualified in their entirety by, and should be read in conjunction with our Certificate of Incorporation,
our Bylaws, and applicable provisions of the Delaware General Corporation Law (“DGCL”).
General
The
rights of the holders of our Common Stock are governed by the DGCL, our Certificate of Incorporation, and our Bylaws.
The
Company is authorized to issue up to 310,000,000 shares of capital stock of which (i) 300,000,000 shares shall be shares of Common
Stock, and (ii) 10,000,000 shares shall be shares of undesignated preferred stock, par value $0.0001 per share (“Undesignated
Preferred Stock”).
CommonStock
VotingRights. Each share of our Common Stock is entitled to one vote on all stockholder matters. Shares of our Common Stock
do not possess any cumulative voting rights. Except for the election of directors, if a quorum is present at any meeting of stockholders,
an action on a matter is approved if it receives the affirmative vote of the majority of the votes properly cast for such matter,
unless otherwise required by applicable law, the Certificate of Incorporation, or Bylaws. The election of directors by stockholders
will be determined by a plurality of the votes properly cast. The rights, preferences, and privileges of holders of Common Stock
are subject to, and may be impacted by, the rights of the holders of shares of any series of preferred stock that we have designated,
or may designate and issue in the future.
DividendRights. Holders of our Common Stock are entitled to receive dividends ratably, if any, as may be declared by our board
of directors out of legally available funds, subject to preferential dividend rights of any preferred stock then outstanding.
Liquidationand Dissolution Rights. Upon voluntary or involuntary liquidation, dissolution or winding up, our net assets shall be
distributed pro rata to the holders of our Common Stock.
OtherRights. Holders of our Common Stock are not entitled to preemptive, subscription, redemption, or conversion rights, and
no sinking fund provisions are applicable to our Common Stock.
TradingMarket. Our Common Stock is listed for trading on the NASDAQ Capital Market under the symbol “VANI.”
UndesignatedPreferred Stock
Our
board of directors has the authority, without further action by our stockholders, to issue up to 10,000,000 shares of Undesignated
Preferred Stock in one or more series and to fix the rights, preferences, privileges, and restrictions thereof. These rights,
preferences, and privileges could include dividend rights, conversion rights, voting rights, terms of redemption, liquidation
preferences, sinking fund terms, and the number of shares constituting, or the designation of, such series, any or all of which
may be greater than the rights of common stock. The issuance of our preferred stock could adversely affect the voting power of
holders of our Common Stock and the likelihood that such holders will receive dividend payments and payments upon our liquidation.
In addition, the issuance of preferred stock could have the effect of delaying, deferring, or preventing a change in control of
our Company or other corporate action.
Anti-takeovereffects of our Certificate of Incorporation and Bylaws and Delaware Law
Our
Certificate of Incorporation and Bylaws include a number of provisions that may have the effect of delaying, deferring or preventing
another party from acquiring control of us and encouraging persons considering unsolicited tender offers or other unilateral takeover
proposals to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. These provisions include
the items described below.
Removalof Directors and Filling of Vacancies. Our Certificate of Incorporation provide that directors may be removed only for
cause and only upon the affirmative vote of holders of not less than two-thirds (2/3) of the outstanding shares of capital stock
then entitled to vote at an election of directors. Furthermore, at least forty-five (45) days prior to any annual or special meeting
of stockholders at which it is proposed that any director be removed from office, written notice of such proposed removal, and
the alleged grounds thereof shall be sent to the director whose removal will be considered at the meeting. Our Certificate of
Incorporation and Bylaws provide that, subject to the rights, if any, of the holders of any series of Undesigned Preferred Stock
to elect directors and to fill vacancies in the board of directors related thereto, any and all vacancies in the board of directors,
however occurring, including, without limitation, by reason of an increase in the size of the board of directors, or the death,
resignation, disqualification, or removal of a director, shall be filled solely and exclusively by the affirmative vote of a majority
of the remaining directors then in office, even if less than a quorum of the board of directors, and not by the stockholders.
Any director appointed in accordance with the preceding sentence shall hold office for the remainder of the full term for which
the new directorship was created or the vacancy occurred and until such director’s successor shall have been duly elected
and qualified or until his or her earlier resignation, death, or removal. The limitations on removal of directors and treatment
of vacancies has the effect of making it more difficult for stockholders to change the composition of our board of directors.
NoWritten Consent of Stockholders. Our Certificate of Incorporation provides that any action required or permitted to be
taken by the stockholders of the Company at any annual or special meeting of stockholders of the Company must be effected at a
duly called annual or special meeting of stockholders and may not be taken or effected by a written consent of stockholders in
lieu thereof. This limit may lengthen the amount of time required to take stockholder actions and would prevent the amendment
of our Bylaws or removal of directors by our stockholders without holding a meeting of stockholders.
SpecialMeeting of Stockholders. Our Certificate of Incorporation and Bylaws provide that special meetings of stockholders may
be called only by the board of directors acting pursuant to a resolution approved by the affirmative vote of a majority of the
directors then in office, and special meetings of stockholders may not be called by any other person or persons.
Amendmentto Certificate of Incorporation and Bylaws by Stockholders. As required by the DGCL,
any amendment of our Certificate of Incorporation must first be approved by a majority of our board of directors, and if required
by law or our Certificate of Incorporation, must thereafter be approved by a majority of the outstanding shares entitled to vote
on the amendment and a majority of the outstanding shares of each class entitled to vote thereon as a class.
Our
Bylaws may be amended by the affirmative vote of a majority of the directors then in office, subject to any limitations set forth
in the Bylaws, and may also be amended at any annual meeting or special meeting called for such purpose by the affirmative vote
of the majority of the outstanding shares entitled to vote on the amendment, in each case voting together as a single class.
UndesignatedPreferred Stock. Our Certificate of Incorporation provides for 10,000,000 authorized shares of Undesignated Preferred
Stock. The existence of authorized but unissued shares of preferred stock may enable our board of directors to discourage an attempt
to obtain control of us by means of a merger, tender offer, proxy contest, or otherwise. For example, if in the due exercise of
its fiduciary obligations, our board of directors were to determine that a takeover proposal is not in the best interests of our
stockholders, our board of directors could cause shares of preferred stock to be issued without stockholder approval in one or
more private offerings or other transactions that might dilute the voting or other rights of the proposed acquirer or insurgent
stockholder or stockholder group. In this regard, our Certificate of Incorporation grants our board of directors broad power to
establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares of preferred
stock could decrease the amount of earnings and assets available for distribution to holders of shares of our Common Stock. The
issuance may also adversely affect the rights and powers, including voting rights, of these holders and may have the effect of
delaying, deterring or preventing a change in control of us.
Choiceof Forum. Our Bylaws provides that unless the Company consents in writing to the selection of an alternative forum, the
Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought
on behalf of the Company, (ii) any action asserting a claim of, or a claim based on, a breach of a fiduciary duty owed by any
current or former director, officer, or other employee or stockholder of the Company to the Company or the Company’s stockholders,
(iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Certificate of Incorporation or the Bylaws
(including the interpretation, validity or enforceability thereof) or as to which the DGCL confers jurisdiction on the Court of
Chancery of the State of Delaware, or (iv) any action asserting a claim governed by the internal affairs doctrine; provided, however,
that this sentence will not apply to any causes of action arising under the Securities Act of 1933, as amended, or the Exchange
Act, or to any claim for which the federal courts have exclusive jurisdiction. In addition, unless the Company consents in writing
to the selection of an alternative forum, the federal district courts of the United States of America shall be the sole and exclusive
forum for resolving any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, the Exchange
Act, or the respective rules and regulations promulgated thereunder (the “Federal Forum Provision”). These
forum provisions may impose additional costs on stockholders, may limit our stockholders’ ability to bring a claim in a
forum they find favorable, and the designated courts may reach different judgements or results than other courts. In addition,
there is uncertainty as to whether our Federal Forum Provision will be enforced, which may impose additional costs on us and our
stockholders.
AdvanceNotice Requirements*.*Our Bylaws establish advance notice procedures with regard to stockholder proposals
relating to the nomination of candidates for election as directors or new business to be brought before meetings of our stockholders.
These procedures provide that notice of stockholder proposals must be timely given in writing to our corporate secretary prior
to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at our principal executive
offices not less than 90 days nor more than 120 days prior to the first anniversary date of the annual meeting for the preceding
year. Our Bylaws specify the requirements as to form and content of all stockholders’ notices. These requirements
may preclude stockholders from bringing matters before the stockholders at an annual or special meeting.
Anti-TakeoverEffects Under Section 203 of Delaware General Corporation Law. Section 203 of the DGCL prohibits a Delaware corporation
from engaging in any “business combination” with any “interested stockholder” for a period of three years
after the date that such stockholder became an interested stockholder, unless the business combination is approved in a prescribed
manner. Under Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it
satisfies one of the following conditions:
| ● | before<br><br> the stockholder became interested, our board of directors approved either the business<br><br> combination or the transaction which resulted in the stockholder becoming an interested<br><br> stockholder; |
|---|---|
| ● | upon<br><br> consummation of the transaction which resulted in the stockholder becoming an interested<br><br> stockholder, the interested stockholder owned at least 85% of the voting stock of the<br><br> corporation outstanding at the time the transaction commenced, excluding for purposes<br><br> of determining the voting stock outstanding, shares owned by persons who are directors<br><br> and also officers, and employee stock plans, in some instances, but not the outstanding<br><br> voting stock owned by the interested stockholder; or |
| --- | --- |
| ● | at<br><br> or after the time the stockholder became interested, the business combination was approved<br><br> by our board of directors and authorized at an annual or special meeting of the stockholders<br><br> by the affirmative vote of at least two-thirds of the outstanding voting stock which<br><br> is not owned by the interested stockholder. |
| --- | --- |
Section
203 defines a business combination to include:
| ● | any<br><br> merger or consolidation involving the corporation and the interested stockholder; |
|---|---|
| ● | any<br><br> sale, transfer, lease, pledge, exchange, mortgage, or other disposition involving the<br><br> interested stockholder of 10% or more of the assets of the corporation; |
| --- | --- |
| ● | subject<br><br> to exceptions, any transaction that results in the issuance or transfer by the corporation<br><br> of any stock of the corporation to the interested stockholder; |
| --- | --- |
| ● | subject<br><br> to exceptions, any transaction involving the corporation that has the effect of increasing<br><br> the proportionate share of the stock of any class or series of the corporation beneficially<br><br> owned by the interested stockholder; or |
| --- | --- |
| ● | the<br><br> receipt by the interested stockholder of the benefit of any loans, advances, guarantees,<br><br> pledges, or other financial benefits provided by or through the corporation. |
| --- | --- |
In
general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding
voting stock of the corporation and any entity or person affiliated with or controlling or controlled by the entity or person.
TransferAgent
Our
transfer agent is VStock Transfer, LLC, 18 Lafayette Place, Woodmere, NY 11598; telephone (212) 828-8436.
| Item 9.01 | Financial Statements and Exhibits. |
|---|
(d)
Exhibits.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
| VIVANI MEDICAL, INC. | ||
|---|---|---|
| Date:<br><br> July 10, 2023 | By: | /s/ Adam Mendelsohn |
| Name:<br><br> Adam Mendelsohn | ||
| Title:<br><br> Chief Executive Officer |
Exhibit 3.1
2
3
4
5
Exhibit 3.2
BYLAWS
OF
VIVANI MEDICAL, INC.
(the “Corporation”)
ARTICLE
I
Stockholders
SECTION
- Annual Meeting. The annual meeting of stockholders (any such meeting being referred to in these Bylaws as an “Annual
Meeting”) shall be held at the hour, date and place within or without the United States that is fixed by the Board of Directors,
which time, date and place may subsequently be changed at any time, before or after the notice for such meeting has been sent to
the stockholders, by vote of the Board of Directors. The Board of Directors may, in its sole discretion, determine that a meeting
of stockholders shall not be held at any place, but may instead be held solely by means of remote communication as authorized by
Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”). In the absence of any such
designation or determination, stockholders’ meetings shall be held at the Corporation’s principal executive office.
If no Annual Meeting has been held for a period of thirteen (13) months after the Corporation’s last Annual Meeting, a special
meeting in lieu thereof may be held, and such special meeting shall have, for the purposes of these Bylaws or otherwise, all the
force and effect of an Annual Meeting. Any and all references hereafter in these Bylaws to an Annual Meeting or Annual Meetings
also shall be deemed to refer to any special meeting(s) in lieu thereof.
SECTION 2. Notice of Stockholder Business and Nominations.
| (a) | Annual Meetings of Stockholders. |
|---|
(1) Nominations
of persons for election to the Board of Directors of the Corporation (the “Board of Directors”) and the proposal
of other business to be considered by the stockholders may be brought before an Annual Meeting (i) by or at the direction of
the Board of Directors or (ii) by any stockholder of the Corporation who was a stockholder of record at the time of giving of
notice of the Annual Meeting provided for in this Bylaw, who is entitled to vote at the meeting, who is present (in person or
by proxy) at the meeting and who complies with the notice procedures set forth in this Bylaw as to such nomination
or business. For the avoidance of doubt, the foregoing clause (ii) shall be the exclusive means for a stockholder to bring
nominations or business properly before an Annual Meeting (other than matters properly brought under Rule 14a-8 (or any
successor rule) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), and such stockholder
must comply with the notice and other procedures set forth in Article I, Section 2(a)(2), (3) and (4) of this Bylaw to bring
such nominations or business properly before an Annual Meeting. In addition to the other requirements set forth in this
Bylaw, for any proposal of business to be considered at an Annual Meeting, it must be a proper subject for action by
stockholders of the Corporation under Delaware law.
(2) For
nominations or other business to be properly brought before an Annual Meeting by a stockholder pursuant to clause (ii) of
Article I, Section 2(a)(1) of this Bylaw, the stockholder must (i) have given Timely Notice (as defined below) thereof in
writing to the Secretary of the Corporation, (ii) have provided any updates or supplements to such notice at the times and in
the forms required by this Bylaw and (iii) together
with the beneficial owner(s), if any, on whose behalf the nomination or business proposal is made, have acted in accordance
with the representations set forth in the Solicitation Statement (as defined below) required by this Bylaw. To be timely, a
stockholder’s written notice must be received by the Secretary at the principal executive offices of the Corporation
not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred
twentieth (120th) day prior to the one-year anniversary of the preceding year’s Annual Meeting; provided, however,
that in the event the Annual Meeting is first convened more than thirty (30) days before or more than sixty (60) days after
such anniversary date, or if no Annual Meeting were held in the preceding year, notice by the stockholder to be timely must
be received by the Secretary of the Corporation not later than the close of business on the later of the ninetieth (90th) day
prior to the scheduled date of such Annual Meeting or the tenth (10th) day following the day on which public announcement of
the date of such meeting is first made (such notice within such time periods shall be referred to as “Timely
Notice”). Such stockholder’s Timely Notice shall set forth or include:
(A) as
to each person whom the stockholder proposes to nominate for election or reelection as a director, (i) the name, age,
business address and residence address of the nominee, (ii) the principal occupation or employment of the nominee, (iii) the
class and number of shares of capital stock of the Corporation that are held of record or are beneficially owned by the
nominee or their affiliates or associates and any Synthetic Equity Interest (as defined below) held or beneficially owned by
the nominee or their affiliates or associates, (iv) a description of all arrangements or understandings between or among the
stockholder and each nominee and any other person or persons (naming such person or persons) pursuant to which the
nominations are to be made by the stockholder or concerning the nominee’s potential service on the Board of Directors,
(v) a questionnaire with respect to the background and qualifications of the nominee completed by the nominee in the form
provided by the Corporation (which questionnaire shall be provided by the Secretary upon written request), (vi) a
representation and agreement in the form provided by the Corporation (which form shall be provided by the Secretary upon
written request) that: (a) such proposed nominee is not and will not become party to any agreement, arrangement or
understanding with any person or entity as to how such 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; (b)
such proposed nominee 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 to the Corporation; (c) such proposed nominee
would, if elected as a director, comply with all applicable rules and regulations of the exchanges upon which shares of the
Corporation’s capital stock trade, each of the Corporation’s corporate governance, ethics, conflict of interest,
confidentiality, stock ownership and trading policies and guidelines applicable generally to the Corporation’s
directors and, if elected as a director of the Corporation, such person currently would be in compliance with any such
policies and guidelines that have been publicly disclosed; (d) such proposed nominee intends to serve as a director for the
full term for which he or she is to stand for election; and (e) such proposed nominee will promptly provide to the
Corporation such other information as it may reasonably request; and (vii) any other information relating to such proposed
nominee that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Exchange Act (including without limitation such
person’s written consent to being named in the proxy statement as a nominee and to serving as a director if
elected);
2
(B) as to any other business that the stockholder proposes to bring before the meeting: a brief description of the business
desired to be brought before the meeting, the reasons for conducting such business at the meeting, the text, if any, of any resolutions
or Bylaw amendment proposed for adoption, and any material interest in such business of each Proposing Person (as defined below);
3
(C) (i)
the name and address of the stockholder giving the notice, as they appear on the Corporation’s books, and the names
and addresses of the other Proposing Persons (if any) and (ii), as to each Proposing Person, the following information: (a)
the class or series and number of all shares of capital stock of the Corporation that are, directly or indirectly, owned
beneficially or of record by such Proposing Person or any of their affiliates or associates (as such terms are defined in
Rule 12b-2 promulgated under the Exchange Act), including any shares of any class or series of capital stock of the
Corporation as to which such Proposing Person or any of their affiliates or associates has a right to acquire beneficial
ownership at any time in the future (whether or not such right is exercisable immediately or only after the passage of time
or upon the satisfaction of any conditions or both) pursuant to any agreement, arrangement or understanding (whether or not
in writing), (b) all Synthetic Equity Interests (as defined below) in which such Proposing Person or any of their affiliates
or associates, directly or indirectly, holds an interest including a description of the material terms of each such Synthetic
Equity Interest, including without limitation, identification of the counterparty to each such Synthetic Equity Interest and
disclosure, for each such Synthetic Equity Interest, as to (1) whether or not such Synthetic Equity Interest conveys any
voting rights, directly or indirectly, in such shares to such Proposing Person or any of their affiliates or associates,
(2) whether or not such Synthetic Equity Interest
is required to be, or is capable of being, settled through delivery of such shares and (3) whether or not such Proposing
Person, any of their affiliates or associates and/or, to the extent known, the counterparty to such Synthetic Equity Interest
has entered into other transactions that hedge or mitigate the economic effect of such Synthetic Equity Interest, (c) any
proxy (other than a revocable proxy given in response to a public proxy solicitation made pursuant to, and in accordance
with, the Exchange Act), agreement, arrangement, understanding or relationship pursuant to which such Proposing Person or any
of their affiliates or associates has or shares a right to, directly or indirectly, vote any shares of any class or series of
capital stock of the Corporation, (d) any rights to dividends or other distributions on the shares of any class or series
of capital stock of the Corporation, directly or indirectly, owned beneficially by such Proposing Person or any of their
affiliates or associates that are separated or separable from the underlying shares of the Corporation, (e) any performance-
related fees (other than an asset-based fee) to which such Proposing Person or any of their affiliates or associates,
directly or indirectly, is entitled to receive based on any increase or decrease in the value of shares of any class or
series of capital stock of the Corporation, or any Synthetic Equity Interests, (f)(1) if such Proposing Person is not a
natural person, the identity of the natural person or persons associated with such Proposing Person responsible for (i) the
formulation of and decision to propose the director nomination or business to be brought before the meeting and (ii) making
voting and investment decisions on behalf of the Proposing Person (irrespective of whether such person or persons have
“beneficial ownership” for purposes of Rule 13d-3 of the Exchange Act of any securities owned of record or
beneficially by the Proposing Person) (such person or persons, the “Responsible Person”), the manner in which
such Responsible Person was selected, any fiduciary duties owed by such Responsible Person to the equity holders or other
beneficiaries of such Proposing Person and, the qualifications and background of such Responsible Person or (2) if such
Proposing Person is a natural person, the qualifications and background of such natural person, (g) any equity interests or
any Synthetic Equity Interests in any principal competitor of the Corporation beneficially owned by such Proposing Person or
any of their affiliates or associates, (h) any direct or indirect interest of such Proposing Person or any of
their affiliates or associates in any contract with the Corporation, any affiliate of the Corporation or any principal
competitor of the Corporation (including, without limitation, in any such case, any employment agreement, collective
bargaining agreement or consulting agreement), (i) any pending or threatened litigation in which such Proposing Person or any
of their affiliates or associates is a party or material participant involving the Corporation or any of its officers or
directors, or any affiliate of the Corporation, (j) any material transaction occurring during the prior twelve months between
such Proposing Person or any of their affiliates or associates, on the one hand, and the Corporation, any affiliate of the
Corporation or any principal competitor of the Corporation, on the other hand, and (k) any other information relating to such
Proposing Person or any of their affiliates or associates that would be required to be disclosed in a proxy statement or
other filing required to be made in connection with solicitations of proxies or consents by such Proposing Person in support
of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act (the disclosures to
be made pursuant to the foregoing clauses (a) through (k) are referred to, collectively, as “Material Ownership
Interests”); provided, however, that the Material Ownership Interests shall not include any such disclosures with
respect to the ordinary course business activities of any broker, dealer, commercial bank, trust company or other nominee who
is a Proposing Person solely as a result of being the stockholder of record directed to prepare and submit the notice
required by these Bylaws on behalf of a beneficial owner;
4
(D) (i) a description of all agreements, arrangements or understandings to which any Proposing Person or any of their affiliates
or associates is a party (whether the counterparty or counterparties are a Proposing Person or any affiliate or associate thereof,
on the one hand, or one or more other third parties, on the other hand, (including any proposed nominee(s)) (a) pertaining to the
nomination(s) or other business proposed to be brought before the meeting of stockholders or (b) entered into for the purpose of
acquiring, holding, disposing or voting of any shares of any class or series of capital stock of the Corporation (which description
shall identify the name of each other person who is party to such an agreement, arrangement or understanding), and (ii) identification
of the names and addresses of other stockholders (including beneficial owners) known by any of the Proposing Persons to support
such nominations or other business proposal(s) and, to the extent known, the class and number of all shares of the Corporation’s
capital stock owned beneficially or of record by such other stockholder(s) or other beneficial owner(s); and
(E) a statement (i) that the stockholder is a holder of record of capital stock of the Corporation entitled to vote at such
meeting, a representation that such stockholder intends to appear in person or by proxy at the meeting to propose such business
or nominees and an acknowledgement that, if such stockholder (or a qualified representative of such stockholder) does not appear
to present such business or proposed nominees, as applicable, at such meeting, the Corporation need not present such business or
proposed nominees for a vote at such meeting, notwithstanding that proxies in respect of such vote may have been received by the
Corporation, (ii) whether or not the stockholder giving the notice and/or the other Proposing Person(s), if any, (a) will deliver
a proxy statement and form of proxy to holders of, in the case of a business proposal, at least the percentage of voting power
of all of the shares of capital stock of the Corporation required under applicable law to approve the proposal or, in the case
of a nomination or nominations, at least 67 percent of the voting power of all of the shares of capital stock of the Corporation
entitled to vote on the election of directors or (b) otherwise solicit proxies or votes from stockholders in support of such proposal
or nomination, as applicable, (iii) providing a representation as to whether or not such Proposing Person intends to solicit proxies
in support of director nominees other than the Corporation’s director nominees in accordance with Rule 14a-19 promulgated
under the Exchange Act, and (iv) that the stockholder will provide any other information relating to such item of business that
would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of
proxies in support of the business proposed to be brought before the meeting pursuant to Section 14(a) of the Exchange Act (such
statement, the “Solicitation Statement”).
5
For purposes of this Article I, the term “Proposing
Person” shall mean the following persons: (i) the stockholder of record providing the notice of nominations or business proposed
to be brought before a stockholders’ meeting and (ii) the beneficial owner(s), if different, on whose behalf the nominations
or business proposed to be brought before a stockholders’ meeting is made. For purposes of this Section 2, the term “Synthetic
Equity Interest” shall mean any transaction, agreement or arrangement (or series of transactions, agreements or arrangements),
including, without limitation, any derivative, swap, hedge, repurchase or so-called “stock borrowing” or securities
lending agreement or arrangement, the purpose or effect of which is to, directly or indirectly: (a) give a person or entity economic
benefit and/or risk similar to ownership of shares of any class or series of capital stock of the Corporation, in whole or in part,
including due to the fact that such transaction, agreement or arrangement provides, directly or indirectly, the opportunity to
profit, or share in any profit, or avoid a loss from any increase or decrease in the value of any shares of any class or series
of capital stock of the Corporation, (b) mitigate loss to, reduce the economic risk of, or manage the risk of share price changes
for, any person or entity with respect to any shares of any class or series of capital stock of the Corporation, (c) otherwise
provide in any manner the opportunity to profit, or share in any profit, or avoid a loss from any decrease in the value of any
shares of any class or series of capital stock of the Corporation, or (d) increase or decrease the voting power of any person or
entity with respect to any shares of any class or series of capital stock of the Corporation.
(3) A
stockholder providing Timely Notice of nominations or business proposed to be brought before an Annual Meeting shall further
update and supplement such notice, if necessary, so that the information (including, without limitation, the
Material Ownership Interests information) provided or required to be provided in such notice pursuant to this Bylaw shall be
true and correct as of the record date for the meeting and as of the date that is ten (10) business days prior to such Annual
Meeting, and such update and supplement shall be received by the Secretary at the principal executive offices of the
Corporation not later than the close of business on the fifth (5th) business day after the record date for the Annual Meeting
(in the case of the update and supplement required to be made as of the record date), and not later than the close of
business on the eighth (8th) business day prior to the date of the Annual Meeting (in the case of the update and supplement
required to be made as of ten (10) business days prior to the meeting). For the avoidance of doubt, the obligation to update
as set forth in this Section 2(a)(3) shall not limit the Corporation’s rights with respect to any deficiencies in any
notice provided by a stockholder, extend any applicable deadlines hereunder, or enable or be deemed to permit a stockholder
who has previously submitted notice hereunder to amend or update any proposal or nomination or to submit any new proposal,
including by changing or adding nominees, matters, business and/or resolutions proposed to be brought before a meeting of the
stockholders. Notwithstanding the foregoing, if a Proposing Person no longer plans to solicit proxies in accordance with its
representation pursuant to Article I, Section 2(a)(2)(E), such Proposing Person shall inform the Corporation of this change
by delivering a written notice to the Secretary at the principal executive offices of the Corporation no later than two (2)
business days after making the determination not to proceed with a solicitation of proxies. A Proposing Person shall also
update its notice so that the information required by Article I, Section 2(a)(2)(C) is current through the date of the
meeting or any adjournment, postponement, or rescheduling thereof, and such update shall be delivered in writing to the
secretary at the principal executive offices of the Corporation no later than two (2) business days after the occurrence of
any material change to the information previously disclosed pursuant to Article I, Section 2(a)(2)(C).
6
(4)
Notwithstanding anything in the second sentence of Article I, Section 2(a)(2) of this Bylaw to the contrary, in the event
that the number of directors to be elected to the Board of Directors is increased and there is no public announcement naming all
of the nominees for director or specifying the size of the increased Board of Directors made by the Corporation at least ten (10)
days before the last day a stockholder may deliver a notice of nomination in accordance with the second sentence of Article I,
Section 2(a)(2), a stockholder’s notice required by this Bylaw shall also be considered timely, but only with respect to
nominees for any new positions created by such increase, if it shall be received by the Secretary 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.
| (b) | General. |
|---|
(1)
Only such persons who are nominated in accordance with the provisions of this Bylaw shall be eligible for election and to
serve as directors, and only such business shall be conducted at an Annual Meeting as shall have been brought before the meeting
in accordance with the provisions of this Bylaw or in accordance with Rule 14a-8 under the Exchange Act. The Board of Directors
or a designated committee thereof shall have the power to determine whether a nomination or any business proposed to be brought
before the meeting was made in accordance with the provisions of this Bylaw. If neither the Board of Directors nor such designated
committee makes a determination as to whether any stockholder proposal or nomination was made in accordance with the provisions
of this Bylaw, the presiding officer of the Annual Meeting shall have the power and duty to determine whether the stockholder proposal
or nomination was made in accordance with the provisions of this Bylaw. If the Board of Directors or a designated committee thereof
or the presiding officer, as applicable, determines that any stockholder proposal or nomination was not made in accordance with
the provisions of this Bylaw, such proposal or nomination shall be disregarded and shall not be presented for action at the Annual
Meeting.
(2)
Except as otherwise required by law, nothing in this Article I, Section 2 shall obligate the Corporation or the Board of
Directors to include in any proxy statement or other stockholder communication distributed on behalf of the Corporation or the
Board of Directors information with respect to any nominee for director or any other matter of business submitted by a stockholder.
7
(3) Notwithstanding
the foregoing provisions of this Article I, Section 2, if the nominating or proposing stockholder (or a qualified
representative of the stockholder) does not appear at the Annual Meeting to present a nomination or any business,
such nomination or business shall be disregarded, notwithstanding that proxies in respect of such vote may have been received
by the Corporation. For purposes of this Article I, Section 2, to be considered a qualified representative of the proposing
stockholder, a person must be authorized by a written instrument executed by such stockholder or an electronic transmission
delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders, and such person must
produce such written instrument or electronic transmission, or a reliable reproduction of the written instrument or
electronic transmission, to the presiding officer at the meeting of stockholders.
(4)
For purposes of this Bylaw, “public announcement” shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act.
(5)
Notwithstanding the foregoing provisions of this Bylaw, a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder, including, but not limited to, Rule 14a-19 of the Exchange Act, with
respect to the matters set forth in this Bylaw. If a stockholder fails to comply with any applicable requirements of the Exchange
Act, including, but not limited to, Rule 14a-19 promulgated thereunder, such stockholder’s proposed nomination or proposed
business shall be deemed to have not been made in compliance with this Bylaw and shall be disregarded.
(6)
Further notwithstanding the foregoing provisions of this Bylaw, unless otherwise required by law, (i) no Proposing Person
shall solicit proxies in support of director nominees other than the Corporation’s nominees unless such Proposing Person
has complied with Rule 14a-19 promulgated under the Exchange Act in connection with the solicitation of such proxies, including
the provision to the Corporation of notices required thereunder with timely notice, and (ii) if any Proposing Person (A) provides
notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act, (B) subsequently fails to comply with the requirements of
Rule 14a-19(a)(2) or Rule 14a- 19(a)(3) promulgated under the Exchange Act, including the provision to the Corporation of notices
required thereunder with timely notice, and (C) no other Proposing Person has provided notice pursuant to, and in compliance with,
Rule 14a-19 under the Exchange Act that it intends to solicit proxies in support of the election of such proposed nominee in accordance
with Rule 14a-19(b) under the Exchange Act, then such proposed nominee shall be disqualified from nomination, the Corporation shall
disregard the nomination of such proposed nominee and no vote on the election of such proposed nominee shall occur. Upon request
by the Corporation, if any Proposing Person provides notice pursuant to Rule 14a-19(b) promulgated under the Exchange Act, such
Proposing Person shall deliver to the Corporation, no later than five (5) business days prior to the applicable meeting date, reasonable
evidence that it has met the requirements of Rule 14a-19(a)(3) promulgated under the Exchange Act.
(7) The
number of nominees a stockholder may nominate for election at the Annual Meeting (or in the case of a stockholder giving the
notice on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the Annual
Meeting on behalf of such beneficial owner) shall not exceed the number of directors to be elected at such Annual
Meeting.
8
SECTION
- Special Meetings. Except as otherwise required by statute and subject to the rights, if any, of the holders of any series
of Undesignated Preferred Stock, special meetings of the stockholders of the Corporation may be called only by or at the direction
of the Board of Directors. The Board of Directors may postpone or reschedule any previously scheduled special meeting of stockholders.
Only those matters set forth in the notice of the special meeting may be considered or acted upon at a special meeting of stockholders
of the Corporation. Nominations of persons for election to the Board of Directors and stockholder proposals of other business shall
not be brought before a special meeting of stockholders to be considered by the stockholders unless such special meeting is held
in lieu of an annual meeting of stockholders in accordance with Article I, Section 1 of these Bylaws, in which case such special
meeting in lieu thereof shall be deemed an Annual Meeting for purposes of these Bylaws and the provisions of Article I, Section
2 of these Bylaws shall govern such special meeting.
SECTION 4. Notice of Meetings;
Adjournments.
(a) A notice of each Annual Meeting stating the hour, date and place, if any, of such Annual Meeting and the means of remote
communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, shall
be given not less than ten (10) days nor more than sixty (60) days before the Annual Meeting, to each stockholder entitled to vote
thereat by delivering such notice to such stockholder or by mailing it, postage prepaid, addressed to such stockholder at the address
of such stockholder as it appears on the Corporation’s stock transfer books. Without limiting the manner by which notice
may otherwise be given to stockholders, any notice to stockholders may be given by electronic transmission in the manner provided
in Section 232 of the DGCL.
(b) Notice of all special meetings of stockholders shall be given in the same manner as provided for Annual Meetings, except
that the notice of all special meetings shall state the purpose or purposes for which the meeting has been called.
(c) Notice of an Annual Meeting or special meeting of stockholders need not be given to a stockholder if a waiver of notice
is executed, or waiver of notice by electronic transmission is provided, before or after such meeting by such stockholder or if
such stockholder attends such meeting, unless such attendance is for the express purpose of objecting at the beginning of the meeting
to the transaction of any business because the meeting was not lawfully called or convened.
(d) The
Board of Directors may postpone and reschedule or cancel any previously scheduled Annual Meeting or special meeting of
stockholders and any record date with respect thereto, regardless of whether any notice or public disclosure with respect to
any such meeting has been sent or made pursuant to Section 2 of this Article I or otherwise. In no event shall the public
announcement of an adjournment, postponement or rescheduling of any previously scheduled meeting of stockholders commence a
new time period for the giving of a stockholder’s notice under this Article I.
9
(e) When any meeting is convened, the presiding officer or the stockholders present or represented by proxy at such meeting
may adjourn the meeting from time to time for any reason, regardless of whether a quorum is present, to reconvene at any other
time and at any place at which a meeting of stockholders may be held under these Bylaws. When any Annual Meeting or special meeting
of stockholders is adjourned to another hour, date or place (including an adjournment taken to address a technical failure to convene
or continue a meeting using remote communication), notice need not be given of the adjourned meeting if the time, place, if any,
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 adjourned meeting are (i) announced at the meeting at which the adjournment is taken, (ii) displayed, during
the time scheduled for the meeting, on the same electronic network used to enable stockholders and proxy holders to participate
in the meeting by means of remote communication or (iii) set forth in the notice of meeting given in accordance with this Section
4; provided, however, that if the adjournment is for more than thirty (30) days from the meeting date, or if after the adjournment
a new record date is fixed for the adjourned meeting, notice of the adjourned meeting and the means of remote communications, if
any, by which stockholders and proxyholders may be deemed to be present in person and vote at such adjourned meeting shall be given
to each stockholder of record entitled to vote thereat and each stockholder who, by law or under the Certificate of Incorporation
of the Corporation (as the same may hereafter be amended and/or restated, the “Certificate”) or these Bylaws, is entitled
to such notice.
SECTION
- Quorum. Except as otherwise provided by law, the certificate of incorporation or these Bylaws, at each meeting of stockholders,
the presence in person or by remote communication, if applicable, or represented by proxy, of the holders of a majority in voting
power of the outstanding shares of stock entitled to vote at the meeting shall be necessary and sufficient to constitute a quorum.
If less than a quorum is present at a meeting, the holders of voting stock representing a majority of the voting power present
at the meeting or the presiding officer may adjourn the meeting from time to time, and the meeting may be held as adjourned without
further notice, except as provided in Section 4 of this Article I. At such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as originally noticed. The stockholders present at a
duly constituted meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum.
SECTION 6. Voting and Proxies.
(a) The
stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of
Section Article IV, Section 5 of these Bylaws, subject to Section 217 (relating to voting rights of fiduciaries, pledgors and
joint owners of stock) and Section 218 (relating to voting trusts and other voting agreements) of the DGCL. Stockholders
shall have one vote for each share of stock entitled to vote owned by them of record according to the stock ledger of the
Corporation as of the record date, unless otherwise provided by law or by the Certificate. Stockholders may vote either (i)
in person, (ii) by written proxy or (iii) by a transmission permitted by Section 212(c) of the DGCL. Any copy, facsimile
telecommunication or other reliable reproduction of the writing or transmission permitted by Section 212(c) of the DGCL may
be substituted for or used in lieu of the original writing or transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a
complete reproduction of the entire original writing or transmission. Proxies shall be filed in accordance with the
procedures established for the meeting of stockholders. Except as otherwise limited therein or as otherwise provided by law,
proxies authorizing a person to vote at a specific meeting shall entitle the persons authorized thereby to vote at any
adjournment of such meeting, but they shall not be valid after final adjournment of such meeting. A proxy with respect to
stock held in the name of two or more persons shall be valid if executed by or on behalf of any one of them unless at or
prior to the exercise of the proxy the Corporation receives a specific written notice to the contrary from any one of them.
In the event the Corporation receives proxies for disqualified or withdrawn nominees for the Board of Directors, such votes
for such disqualified or withdrawn nominees in the proxies will be treated as abstentions.
10
(b) Any stockholder directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than
white, which shall be reserved for the exclusive use by the Board of Directors.
SECTION
- Action at Meeting. When a quorum is present at any meeting of stockholders, any matter before any such meeting (other
than an election of a director or directors) shall be decided by a majority of the votes properly cast for and against such matter,
except where a larger vote is required by law, by the Certificate or by these Bylaws. Any election of directors by stockholders
shall be determined by a plurality of the votes properly cast on the election of directors.
SECTION
- Stockholder Lists. The Corporation shall prepare, no later than the tenth (10^th^) day before each Annual Meeting
or special meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, 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 ten (10) days ending
on the day before the meeting date in the manner provided by law.
SECTION
- Conduct of Meeting. The Board of Directors may adopt by resolution
such rules, regulations, and procedures for the conduct of any meeting of stockholders as it shall deem appropriate. Except
to the extent inconsistent with rules, regulations, and procedures adopted by the Board of Directors, the chair of the
meeting shall have the right to prescribe such rules, regulations, and procedures and to do all such acts, as, in the
judgment of such chair, are necessary, appropriate, or convenient for the proper conduct of the meeting. Such rules,
regulations, or procedures, whether adopted by the Board of Directors or the chair of the meeting, may include, without
limitation, the following: (a) the establishment of an agenda for the meeting; (b) rules and procedures for maintaining order
at the meeting and the safety of those present at the meeting; (c) limitations on attendance at or participation in the
meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies, or such other persons as
the chair of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement
thereof; (e) the determination of the circumstances in which any person may make a statement or ask questions and limitations
on the time allotted to questions or comments; (f) the determination of when the polls shall open and close for any given
matter to be voted on at the meeting; (g) the exclusion or removal of any stockholders or any other individual who refuses to
comply with meeting rules, regulations, or procedures; (h) restrictions on the use of audio and video recording devices, cell
phones, and other electronic devices; (i) rules, regulations, and procedures for compliance with any federal, state, or local
laws or regulations (including those concerning safety, health, or security); (j) procedures (if any) requiring attendees to
provide the Corporation advance notice of their intent to attend the meeting; and (k) rules, regulations, or procedures
regarding the participation by means of remote communication of stockholders and proxy holders not physically present at a
meeting, whether such meeting is to be held at a designated place or solely by means of remote communication. Unless and to
the extent determined by the Board of Directors or the chair of the meeting, the chair of the meeting shall not be obligated
to adopt or follow any technical, formal, or parliamentary rules or principles of procedure.
11
SECTION
- Inspectors of Elections. The Corporation shall, in advance of any meeting of stockholders, appoint one or three inspectors
to act at the meeting and make a written report thereof. The Corporation 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 shall appoint one or more inspectors to act at the meeting. Any inspector may, but need not, be an officer, employee or
agent of the Corporation. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors
shall perform such duties as are required by the DGCL, including the counting of all votes and ballots. The inspectors may appoint
or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors. The presiding
officer may review all determinations made by the inspectors, and in so doing the presiding officer shall be entitled to exercise
his or her sole judgment and discretion and he or she shall not be bound by any determinations made by the inspectors. All determinations
by the inspectors and, if applicable, the presiding officer, shall be subject to further review by any court of competent jurisdiction.
ARTICLE II
Directors
SECTION
- Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors
except as otherwise provided by the Certificate or required by law.
SECTION
- Number and Terms. The number of directors of the Corporation shall
be fixed solely and exclusively by resolution duly adopted from time to time by the Board of Directors, provided the Board of
Directors shall consist of at least one (1) member. The directors shall hold office in the manner provided in the
Certificate.
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SECTION 3. Qualification. No director need
be a stockholder of the Corporation.
SECTION
- Vacancies. Vacancies in the Board of Directors shall be filled in the manner provided in the Certificate.
SECTION
- Removal. Directors may be removed from office only in the manner provided in the Certificate and applicable law.
SECTION
- Resignation. A director may resign at any time by electronic transmission or by giving written notice to the Chairperson
of the Board, if one is elected, the President or the Secretary. A resignation shall be effective upon receipt, unless the resignation
otherwise provides.
SECTION
- Regular Meetings. Regular meetings of the Board of Directors may be held at such hour, date and place as the Board of
Directors may by resolution from time to time determine and publicize by means of reasonable notice given to any director who is
not present at the meeting at which such resolution is adopted.
SECTION
- Special Meetings. Special meetings of the Board of Directors may be called, orally or in writing, by or at the request
of a majority of the directors, the Chairperson of the Board, if one is elected, or the President. The person calling any such
special meeting of the Board of Directors may fix the hour, date and place thereof.
SECTION
- Notice of Meetings. Notice of the hour, date and place of all special
meetings of the Board of Directors shall be given to each director by the Secretary or an Assistant Secretary, or in case of
the death, absence, incapacity or refusal of such persons, by the Chairperson of the Board, if one is elected, or the
President or such other officer designated by the Chairperson of the Board, if one is elected, or the President. Notice of
any special meeting of the Board of Directors shall be given to each director in person, by telephone, or by facsimile,
electronic mail or other form of electronic communication, sent to his or her business or home address, at least twenty-four
(24) hours in advance of the meeting, or by written notice mailed to his or her business or home address, at least
forty-eight (48) hours in advance of the meeting provided, however, that if the Chairperson of the Board or the
President determines that it is otherwise necessary or advisable to hold the meeting sooner, then the Chairperson of the
Board or the President, as the case may be, may prescribe a shorter time period for notice to be given personally or by
telephone, facsimile, electronic mail or other similar means of communication. Such notice shall be deemed to be delivered
when hand- delivered to such address; read to such director by telephone; deposited in the mail so addressed, with postage
thereon prepaid, if mailed; or dispatched or transmitted if sent by facsimile transmission or by electronic mail or other
form of electronic communications. A written waiver of notice signed or electronically transmitted before or after a meeting
by a director and filed with the records of the meeting shall be deemed to be equivalent to notice of the meeting. The
attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a
meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because such
meeting is not lawfully called or convened. Except as otherwise required by law, by the Certificate or by these Bylaws,
neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
13
SECTION
- Quorum. At any meeting of the Board of Directors, a majority of the total number of directors shall constitute a quorum
for the transaction of business, but if less than a quorum is present at a meeting, a majority of the directors present may adjourn
the meeting from time to time, and the meeting may be held as adjourned without further notice. Any business that might have been
transacted at the meeting as originally noticed may be transacted at such adjourned meeting at which a quorum is present. For purposes
of this Section 10, the total number of directors includes any unfilled vacancies on the Board of Directors.
SECTION
- Action at Meeting. At any meeting of the Board of Directors at which a quorum is present, the vote of a majority of
the directors present shall constitute action by the Board of Directors, unless otherwise required by law, by the Certificate or
by these Bylaws.
SECTION
- Action by Consent. Any action required or permitted to be taken at any meeting of
the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing or
by electronic transmission and the writing or writings or electronic transmission or transmissions are filed with the records
of the meetings of the Board of Directors. Such filing shall be in paper form if the minutes are maintained in paper form and
shall be in electronic form if the minutes are maintained in electronic form. Such consent shall be treated as a resolution
of the Board of Directors for all purposes.
SECTION
- Manner of Participation. Directors may participate in meetings of the Board of Directors by means of video conference,
conference telephone or other communications equipment by means of which all directors participating in the meeting can hear each
other, and participation in a meeting in accordance herewith shall constitute presence in person at such meeting for purposes of
these Bylaws.
SECTION
- Presiding Director. The Board of Directors shall designate a representative to
preside over all meetings of the Board of Directors, provided that if the Board of Directors does not so designate such a
presiding director or such designated presiding director is unable to so preside or is absent, then the Chairperson of the
Board, if one is elected, shall preside over all meetings of the Board of Directors. If both the designated presiding
director, if one is so designated, and the Chairperson of the Board, if one is elected, are unable to preside or are absent,
the Board of Directors shall designate an alternate representative to preside over a meeting of the Board of Directors.
SECTION 15.
Committees. The Board of Directors, by vote of a majority of the directors then in office,
may elect one or more committees, including, without limitation, a Compensation Committee, a Nominating & Corporate Governance
Committee and an Audit Committee, and may delegate thereto some or all of its powers to such committee(s) except those which by
law, by the Certificate or by these Bylaws may not be delegated. Except as the Board of Directors may otherwise determine, any
such committee may make rules for the conduct of its business, but unless otherwise provided by the Board of Directors or in such
rules, its business shall be conducted so far as possible in the same manner as is provided by these Bylaws for the Board of Directors.
All members of such committees shall hold such offices at the pleasure of the Board of Directors. The Board of Directors may abolish
any such committee at any time. Any committee to which the Board of Directors delegates any of its powers or duties shall keep
records of its meetings and shall report its action to the Board of Directors. The Corporation elects to be governed by the provisions
of Section 141(c)(2) of the DGCL.
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SECTION 16. Compensation of Directors. Directors shall receive such compensation for their services as
shall be determined by a majority of the Board of Directors, or a designated committee thereof, provided that directors who are
serving the Corporation as employees shall not receive any salary or other compensation for their services as directors of the
Corporation.
ARTICLE III
Officers
SECTION 1. Enumeration. The officers of the Corporation shall consist of a President, a Treasurer, a Secretary and such other officers,
including, without limitation, a Chairperson of the Board, a Chief Executive Officer and one or more Vice Presidents (including
Executive Vice Presidents or Senior Vice Presidents), Assistant Vice Presidents, Assistant Treasurers and Assistant Secretaries,
as the Board of Directors may determine. Any number of offices may be held by the same person. The salaries and other compensation
of the officers of the Corporation will be fixed by or in the manner designated by the Board of Directors or a committee thereof
to which the Board of Directors has delegated such responsibility.
SECTION 2. Election. The Board of Directors shall elect the President, the Treasurer and the Secretary. Other officers may be elected
by the Board of Directors at such regular annual meeting of the Board of Directors or at any other regular or special meeting.
SECTION 3. Qualification.
No officer need be a stockholder or a director.
SECTION 4. Tenure. Except as otherwise provided by the Certificate or by
these
Bylaws, each of the officers
of the Corporation shall hold office until the regular annual meeting of the Board of Directors following the next Annual Meeting
and until his or her successor is elected and qualified or until his or her earlier resignation or removal.
SECTION 5. Resignation and Removal. Any officer may resign by delivering his
or her written or electronically transmitted resignation to the Corporation addressed to the President or the Secretary, and
such resignation shall be effective upon receipt, unless the resignation otherwise provides. Any resignation is without
prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party. Except as otherwise
provided by law or by resolution of the Board of Directors, the Board of Directors may remove any officer with or without
cause by the affirmative vote of a majority of the directors then in office. Except as the Board of Directors may otherwise
determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period
following his or her resignation or removal, or any right to damages on account of such removal, whether his or her
compensation be by the month or by the year or otherwise, unless such compensation is expressly provided in a duly authorized
written agreement with the Corporation.
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SECTION
- Absence or Disability. In the event of the absence or disability of any officer, the Board of Directors may designate
another officer to act temporarily in place of such absent or disabled officer.
SECTION
- Vacancies. Any vacancy in any office may be filled for the unexpired portion of the term by the Board of Directors.
SECTION
- President. The President shall, subject to the direction of the Board of Directors, have such powers and shall perform
such duties as the Board of Directors may from time to time designate.
SECTION
9. Chairperson of the Board. The Chairperson of the Board, if one is elected, shall have such powers and shall perform such
duties as the Board of Directors may from time to time designate.
SECTION
- Chief Executive Officer. The Chief Executive Officer, if one is elected, shall have such
powers and shall perform such duties as the Board of Directors may from time to time designate. The Chief Executive Officer
shall preside as the chair of the meeting at all meetings of the stockholders; provided that if there is no Chief Executive
Officer or the Chief Executive Officer is unable to so preside or is absent, then a director or officer chosen by resolution
of the Board of Directors shall act as Chairperson at all meetings of stockholders.
SECTION
- Vice Presidents and Assistant Vice Presidents. Any Vice President (including any Executive Vice President or Senior
Vice President) and any Assistant Vice President shall have such powers and shall perform such duties as the Board of Directors
or the Chief Executive Officer may from time to time designate.
SECTION
- Treasurer and Assistant Treasurers. The Treasurer shall, subject to the direction of the Board of Directors and except
as the Board of Directors or the Chief Executive Officer may otherwise provide, have general charge of the financial affairs of
the Corporation and shall cause to be kept accurate books of account. The Treasurer shall have custody of all funds, securities,
and valuable documents of the Corporation. He or she shall have such other duties and powers as may be designated from time to
time by the Board of Directors or the Chief Executive Officer. Any Assistant Treasurer shall have such powers and perform such
duties as the Board of Directors or the Chief Executive Officer may from time to time designate.
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SECTION
- Secretary and Assistant Secretaries. The Secretary shall record all the
proceedings of the meetings of the stockholders and the Board of Directors (including committees of the Board of Directors)
in books kept for that purpose. In his or her absence from any such meeting, a temporary secretary chosen at the meeting
shall record the proceedings thereof. The Secretary shall have charge of the stock ledger (which may, however, be kept by any
transfer or other agent of the Corporation). The Secretary shall have custody of the seal of the Corporation, and the
Secretary, or an Assistant Secretary shall have authority to affix it to any instrument requiring it, and, when so affixed,
the seal may be attested by his or her signature or that of an Assistant Secretary. The Secretary shall have such other
duties and powers as may be designated from time to time by the Board of Directors or the Chief Executive Officer. In the
absence of the Secretary, any Assistant Secretary may perform his or her duties and responsibilities. Any Assistant Secretary
shall have such powers and perform such duties as the Board of Directors or the Chief Executive Officer may from time to time
designate.
SECTION
- Other Powers and Duties. Subject to these Bylaws and to such limitations as the Board of Directors may from time to
time prescribe, the officers of the Corporation shall each have such powers and duties as generally pertain to their respective
offices, as well as such powers and duties as from time to time may be conferred by the Board of Directors or the Chief Executive
Officer.
SECTION
- Representation of Shares of Other Corporations. The Chairperson of the Board, the President, any Vice President, the
Treasurer, the Secretary or Assistant Secretary of this Corporation, or any other person authorized by the Board of Directors or
the President or a Vice President, is authorized to vote, represent and exercise on behalf of this Corporation all rights incident
to any and all securities of any other entity or entities standing in the name of this Corporation. The authority granted herein
may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed
by such person having the authority.
ARTICLE IV
Capital Stock
SECTION
- Certificates of Stock. Each stockholder shall be entitled to a
certificate of the capital stock of the Corporation in such form as may from time to time be prescribed by the Board of
Directors. Such certificate shall be signed by any two authorized officers of the Corporation. The Corporation seal and the
signatures by the Corporation’s officers, the transfer agent or the registrar may be facsimiles. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed on such 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 time of its issue. Every certificate
for shares of stock which are subject to any restriction on transfer and every certificate issued when the Corporation is
authorized to issue more than one class or series of stock shall contain such legend with respect thereto as is required by
law. Notwithstanding anything to the contrary provided in these Bylaws, the Board of Directors may provide by resolution or
resolutions that some or all of any or all classes or series of its stock shall be uncertificated shares (except that the
foregoing shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation),
and by the approval and adoption of these Bylaws the Board of Directors has determined that all classes or series of the
Corporation’s stock may be uncertificated, whether upon original issuance, re-issuance, or subsequent transfer.
17
SECTION
- Transfers. Subject to any restrictions on transfer and unless otherwise provided by the Board of Directors, shares of
stock that are represented by a certificate may be transferred on the books of the Corporation by the surrender to the Corporation
or its transfer agent of the certificate theretofore properly endorsed or accompanied by a written assignment or power of attorney
properly executed, with transfer stamps (if necessary) affixed, and with such proof of the authenticity of signature as the Corporation
or its transfer agent may reasonably require. Shares of stock that are not represented by a certificate may be transferred on the
books of the Corporation by submitting to the Corporation or its transfer agent such evidence of transfer and following such other
procedures as the Corporation or its transfer agent may require.
SECTION
- Stock Transfer Agreements. The Corporation shall have power to enter into and perform any agreement with any number of
stockholders of any one or more classes of stock of the Corporation to restrict the transfer of shares of stock of the corporation
of any one or more classes owned by such stockholders in any manner not prohibited by the DGCL.
SECTION
- Record Holders. Except as may otherwise be required by law, by the Certificate or by these Bylaws, the Corporation shall
be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to vote with respect thereto, regardless of any transfer, pledge or other disposition of such
stock, until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.
SECTION
- Record Date. In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of
Directors, and which record date: (a) in the case of determination of stockholders entitled to vote at any meeting of
stockholders, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the
date of such meeting and (b) in the case of any other action, shall not be more than sixty (60) days prior to such other
action. If no record date is fixed: (i) the record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on which the meeting is held; and (ii) the
record date for determining stockholders for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto.
SECTION
- Replacement of Certificates. In case of the alleged loss, destruction or mutilation of a certificate of stock of the
Corporation, a duplicate certificate may be issued in place thereof, upon such terms as the Board of Directors may prescribe.
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ARTICLE V
Indemnification
SECTION 1. Definitions. For purposes of this
Article V:
(a) “Corporate Status” describes the status of a person who is serving or has served (i) as a Director of the Corporation,
(ii) as an Officer of the Corporation, (iii) as a Non-Officer Employee of the Corporation, or (iv) as a director, partner, trustee,
officer, employee or agent of any other corporation, partnership, limited liability company, joint venture, trust, employee benefit
plan, foundation, association, organization or other legal entity which such person is or was serving at the request of the Corporation.
For purposes of this Section 1(a), a Director, Officer or Non-Officer Employee of the Corporation who is serving or has served
as a director, partner, trustee, officer, employee or agent of a Subsidiary shall be deemed to be serving at the request of the
Corporation. Notwithstanding the foregoing, “Corporate Status” shall not include the status of a person who is serving
or has served as a director, officer, employee or agent of a constituent corporation absorbed in a merger or consolidation transaction
with the Corporation with respect to such person’s activities prior to said transaction, unless specifically authorized by
the Board of Directors or the stockholders of the Corporation;
(b) “Director” means any person who serves or has served the Corporation as a director on the Board of Directors
of the Corporation;
(c) “Disinterested Director” means, with respect to each Proceeding in respect of which indemnification is sought
hereunder, a Director of the Corporation who is not and was not a party to such Proceeding;
(d) “Expenses” means all attorneys’ fees, retainers, court costs, transcript costs, fees of expert witnesses,
private investigators and professional advisors (including, without limitation, accountants and investment bankers), travel expenses,
duplicating costs, printing and binding costs, costs of preparation of demonstrative evidence and other courtroom presentation
aids and devices, costs incurred in connection with document review, organization, imaging and computerization, telephone charges,
postage, delivery service fees, and all other disbursements, costs or expenses of the type customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or otherwise
participating in, a Proceeding;
(e) “Liabilities” means judgments, damages, liabilities, losses, penalties, excise taxes, fines and amounts paid
in settlement;
(f) “Non-Officer Employee” means any person who serves or has served as an employee or agent of the Corporation,
but who is not or was not a Director or Officer;
(g) “Officer” means any person who serves or has served the Corporation as an officer of the Corporation appointed
by the Board of Directors of the Corporation;
19
(h) “Proceeding” means any threatened, pending or completed action, suit, arbitration, alternate dispute resolution
mechanism, inquiry, investigation, administrative hearing or other proceeding, whether civil, criminal, administrative, arbitrative
or investigative; and
(i) “Subsidiary” means any corporation, partnership, limited liability company, joint venture, trust or other entity
of which the Corporation owns (either directly or through or together with another Subsidiary of the Corporation) either (i) a
general partner, managing member or other similar interest or (ii) (A) fifty percent (50%) or more of the voting power of the voting
capital equity interests of such corporation, partnership, limited liability company, joint venture or other entity, or (B) fifty
percent (50%) or more of the outstanding voting capital stock or other voting equity interests of such corporation, partnership,
limited liability company, joint venture or other entity.
SECTION 2. Indemnification of Directors and Officers.
(a) Subject to the operation of Section 4 of this Article V, each Director and Officer shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended (but, in the case
of any such amendment, 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), and to the extent authorized in this Section 2.
(1)
Actions, Suits and Proceedings Other than By or In the Right of the Corporation. Each Director and Officer shall
be indemnified and held harmless by the Corporation against any and all Expenses and Liabilities that are incurred or paid by such
Director or Officer or on such Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue
or matter therein (other than an action by or in the right of the Corporation), which such Director or Officer is, or is threatened
to be made, a party to or participant in by reason of such Director’s or Officer’s Corporate Status, if such Director
or Officer acted in good faith and in a manner such Director or Officer reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal proceeding, had no reasonable cause to believe his or her conduct
was unlawful.
(2) Actions,
Suits and Proceedings By or In the Right of the Corporation. Each Director and Officer shall be indemnified and held
harmless by the Corporation against any and all Expenses that are incurred by such Director or Officer or on such
Director’s or Officer’s behalf in connection with any Proceeding or any claim, issue or matter therein by or in
the right of the Corporation, which such Director or Officer is, or is threatened to be made, a party to or participant in by
reason of such Director’s or Officer’s Corporate Status, if such Director or Officer acted in good faith and in a
manner such Director or Officer reasonably believed to be in or not opposed to the best interests of the Corporation;
provided, however, that no indemnification shall be made under this Section 2(a)(2) in respect of any claim, issue or matter
as to which such Director or Officer shall have been finally adjudged by a court of competent jurisdiction to be liable to
the Corporation, unless, and only to the extent that, the Court of Chancery of the State of Delaware or another court in
which such Proceeding was brought shall determine upon application that, despite adjudication of liability, but in view of
all the circumstances of the case, such Director or Officer is fairly and reasonably entitled to indemnification for such
Expenses that such court deems proper.
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(3)
Survival of Rights. The rights of indemnification provided by this Section 2 shall continue as to a Director or Officer
after he or she has ceased to be a Director or Officer and shall inure to the benefit of his or her heirs, executors, administrators
and personal representatives.
(4)
Actions by Directors or Officers. Notwithstanding the foregoing, the Corporation shall indemnify any Director or
Officer seeking indemnification in connection with a Proceeding initiated by such Director or Officer only if such Proceeding (including
any parts of such Proceeding not initiated by such Director or Officer) was authorized in advance by the Board of Directors, unless
such Proceeding was brought to enforce such Officer’s or Director’s rights to indemnification or, in the case of Directors,
advancement of Expenses under these Bylaws in accordance with the provisions set forth herein.
SECTION
- Indemnification of Non-Officer Employees. Subject to the operation of Section 4 of this Article V, each Non-Officer Employee
may, in the discretion of the Board of Directors, be indemnified by the Corporation to the fullest extent authorized by the DGCL,
as the same exists or may hereafter be amended, against any or all Expenses and Liabilities that are incurred by such Non-Officer
Employee or on such Non-Officer Employee’s behalf in connection with any threatened, pending or completed Proceeding, or
any claim, issue or matter therein, which such Non-Officer Employee is, or is threatened to be made, a party to or participant
in by reason of such Non-Officer Employee’s Corporate Status, if such Non-Officer Employee acted in good faith and in a manner
such Non-Officer Employee reasonably believed to be in or not opposed to the best interests of the Corporation and, with respect
to any criminal proceeding, had no reasonable cause to believe his or her conduct was unlawful. The rights of indemnification provided
by this Section 3 shall exist as to a Non-Officer Employee after he or she has ceased to be a Non-Officer Employee and shall inure
to the benefit of his or her heirs, personal representatives, executors and administrators. Notwithstanding the foregoing, the
Corporation may indemnify any Non-Officer Employee seeking indemnification in connection with a Proceeding initiated by such Non-Officer
Employee only if such Proceeding was authorized in advance by the Board of Directors.
SECTION
- Determination. Unless ordered by a court, no indemnification shall
be provided pursuant to this Article V to a Director, to an Officer or to a Non-Officer Employee unless a determination shall
have been made that such person acted in good faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Corporation and, with respect to any criminal Proceeding, such person had no reasonable cause to
believe his or her conduct was unlawful. Such determination shall be made by (a) a majority vote of the Disinterested
Directors, even though less than a quorum of the Board of Directors, (b) a
committee comprised of Disinterested Directors, such committee having been designated by a majority vote of the
Disinterested Directors (even though less than a quorum), (c) if there are no such Disinterested Directors, or if a majority
of Disinterested Directors so directs, by independent legal counsel in a written opinion, or (d) by the stockholders of the
Corporation.
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SECTION 5. Advancement of Expenses to Directors
Prior to Final Disposition.
(a) The Corporation shall advance all Expenses incurred by or on behalf of any Director in connection with any Proceeding in
which such Director is involved by reason of such Director’s Corporate Status within thirty (30) days after the receipt by
the Corporation of a written statement from such Director requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred
by such Director and shall be preceded or accompanied by an undertaking by or on behalf of such Director to repay any Expenses
so advanced if it shall ultimately be determined that such Director is not entitled to be indemnified against such Expenses. Notwithstanding
the foregoing, the Corporation shall advance all Expenses incurred by or on behalf of any Director seeking advancement of expenses
hereunder in connection with a Proceeding initiated by such Director only if such Proceeding (including any parts of such Proceeding
not initiated by such Director) was (i) authorized by the Board of Directors, or (ii) brought to enforce such Director’s
rights to indemnification or advancement of Expenses under these Bylaws.
(b) If a claim for advancement of Expenses hereunder by a Director is not paid in full by the Corporation within thirty (30)
days after receipt by the Corporation of documentation of Expenses and the required undertaking, such Director may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of the claim and, if successful in whole or in part,
such Director shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including
its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning
the permissibility of such advancement of Expenses under this Article V shall not be a defense to an action brought by a Director
for recovery of the unpaid amount of an advancement claim and shall not create a presumption that such advancement is not permissible.
The burden of proving that a Director is not entitled to an advancement of expenses shall be on the Corporation.
(c) In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication that the Director has not met any applicable standard
for indemnification set forth in the DGCL.
SECTION 6. Advancement
of Expenses to Officers and Non-Officer Employees Prior to Final Disposition.
(a) The
Corporation may, at the discretion of the Board of Directors, advance any or all Expenses incurred by or on behalf of any
Officer or any Non-Officer Employee in connection with any Proceeding in which such person is involved by reason of his or
her Corporate Status as an Officer or Non-Officer Employee upon the receipt by the Corporation of a statement or statements
from such Officer or Non-Officer Employee requesting such advance or advances from time to time, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred by such
Officer or Non-Officer Employee and shall be preceded or accompanied by an undertaking by or on behalf of such person to
repay any Expenses so advanced if it shall ultimately be determined that such Officer or Non-Officer Employee is not entitled
to be indemnified against such Expenses.
22
(b) In any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the
Corporation shall be entitled to recover such expenses upon a final adjudication that the Officer or Non-Officer Employee has not
met any applicable standard for indemnification set forth in the DGCL.
SECTION 7. Contractual Nature of Rights.
(a) The provisions of this Article V shall be deemed to be a contract between the Corporation and each Director and Officer
entitled to the benefits hereof at any time while this Article V is in effect, in consideration of such person’s past or
current and any future performance of services for the Corporation. Neither amendment, repeal or modification of any provision
of this Article V nor the adoption of any provision of the Certificate inconsistent with this Article V shall eliminate or reduce
any right conferred by this Article V in respect of any act or omission occurring, or any cause of action or claim that accrues
or arises or any state of facts existing, at the time of or before such amendment, repeal, modification or adoption of an inconsistent
provision (even in the case of a proceeding based on such a state of facts that is commenced after such time), and all rights to
indemnification and advancement of Expenses granted herein or arising out of any act or omission shall vest at the time of the
act or omission in question, regardless of when or if any proceeding with respect to such act or omission is commenced. The rights
to indemnification and to advancement of expenses provided by, or granted pursuant to, this Article V shall continue notwithstanding
that the person has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs,
executors, administrators, legatees and distributes of such person.
(b) If a claim for indemnification hereunder by a Director or Officer is not paid in full by the Corporation within sixty (60)
days after receipt by the Corporation of a written claim for indemnification, such Director or Officer may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim, and if successful in whole or in part, such Director
or Officer shall also be entitled to be paid the expenses of prosecuting such claim. The failure of the Corporation (including
its Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning
the permissibility of such indemnification under this Article V shall not be a defense to an action brought by a Director or Officer
for recovery of the unpaid amount of an indemnification claim and shall not create a presumption that such indemnification is not
permissible. The burden of proving that a Director or Officer is not entitled to indemnification shall be on the Corporation.
(c) In any suit brought by a Director or Officer to enforce a right to indemnification hereunder, it shall be a defense that
such Director or Officer has not met any applicable standard for indemnification set forth in the DGCL.
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SECTION
- Non-Exclusivity of Rights. The rights to indemnification and to advancement of Expenses set forth in this Article V shall
not be exclusive of any other right that any Director, Officer, or Non-Officer Employee may have or hereafter acquire under any
statute, provision of the Certificate or these Bylaws, agreement, vote of stockholders or Disinterested Directors or otherwise.
SECTION
- Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any Director, Officer or Non-Officer
Employee against any liability of any character asserted against or incurred by the Corporation or any such Director, Officer or
Non- Officer Employee, or arising out of any such person’s Corporate Status, whether or not the Corporation would have the
power to indemnify such person against such liability under the DGCL or the provisions of this Article V.
SECTION
- Other Indemnification. The Corporation’s obligation, if any, to indemnify or provide advancement of Expenses to
any person under this Article V as a result of such person serving, at the request of the Corporation, as a director, partner,
trustee, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise
shall be reduced by any amount such person may collect as indemnification or advancement of Expenses from such other corporation,
partnership, joint venture, trust, employee benefit plan or enterprise (the “Primary Indemnitor”). Any indemnification
or advancement of Expenses under this Article V owed by the Corporation as a result of a person serving, at the request of the
Corporation, as a director, partner, trustee, officer, employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise shall only be in excess of, and shall be secondary to, the indemnification or advancement
of Expenses available from the applicable Primary Indemnitor(s) and any applicable insurance policies.
SECTION
- Savings Clause. If this Article V or any portion hereof shall be invalidated on any ground by any court of competent
jurisdiction, then the Corporation shall nevertheless indemnify each Indemnitee as to any expenses (including, without limitation,
attorneys’ fees), liabilities, losses, judgments, fines (including, without limitation, excise taxes and penalties arising
under the Employee Retirement Income Security Act of 1974, as amended) and amounts paid in settlement in connection with any action,
suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, an action by or in
the right of the Corporation, to the fullest extent permitted by any applicable portion of this Article V that shall not have been
invalidated and to the fullest extent permitted by applicable law.
ARTICLE VI
Miscellaneous Provisions
SECTION 1. Fiscal Year.
The fiscal year of the Corporation shall be determined by the Board of Directors.
SECTION 2. Seal.
The Board of Directors shall have power to adopt and alter the seal of the Corporation.
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SECTION 3. Execution of Instruments. All deeds, leases, transfers, contracts, bonds, notes and other obligations to be entered into
by the Corporation in the ordinary course of its business without director action may be executed on behalf of the Corporation
by the Chairperson of the Board, if one is elected, the President or the Treasurer or any other officer, employee or agent of the
Corporation as the Board of Directors or the executive committee of the Board of Directors may authorize.
SECTION 4. Voting of Securities. Unless the Board of Directors otherwise provides, the Chairperson of the Board, if one is elected,
the President or the Treasurer may waive notice of, and act on behalf of the Corporation, or appoint another person or persons
to act as proxy or attorney in fact for the Corporation with or without discretionary power and/or power of substitution, at any
meeting of stockholders or stockholders of any other corporation or organization, any of whose securities are held by the Corporation.
SECTION 5. Resident Agent. The Board of Directors may appoint a resident agent upon whom legal process may be served in any action
or proceeding against the Corporation.
SECTION 6. Corporate Records. The original or attested copies of the Certificate,
Bylaws and records of all meetings of the incorporators, stockholders and the Board of Directors and the stock transfer
books, which shall contain the names of all stockholders, their record addresses and the amount of stock held by each, may be
kept outside the State of Delaware and shall be kept at the principal office of the Corporation, at an office of its counsel,
at an office of its transfer agent or at such other place or places as may be designated from time to time by the Board of
Directors.
SECTION 7. Certificate. All references in these Bylaws to the Certificate shall be deemed to refer to the Certificate, as amended
and/or restated and in effect from time to time.
SECTION 8. Exclusive Jurisdiction of Delaware Courts or the United States Federal
District Courts. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of
Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought
on behalf of the Corporation, (ii) any action asserting a claim of, or a claim based on, a breach of a fiduciary duty owed by
any current or former director, officer or other employee or stockholder of the Corporation to the Corporation or the
Corporation’s stockholders, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the
Certificate or these Bylaws (including the interpretation, validity or enforceability thereof) or as to which the DGCL
confers jurisdiction on the Court of Chancery of the State of Delaware, or (iv) any action asserting a claim governed by the
internal affairs doctrine; provided, however, that this sentence will not apply to any causes of action arising under the
Securities Act of 1933, as amended, or the Exchange Act, or to any claim for which the federal courts have exclusive
jurisdiction. Unless the Corporation consents in writing to the selection of an alternative forum, the federal district
courts of the United States of America shall be the sole and exclusive forum for resolving any complaint asserting a cause of
action arising under the Securities Act of 1933, as amended, the Exchange Act, or the respective rules and regulations
promulgated thereunder. To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring any
interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions
of this Section 8.
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SECTION 9. Amendment of Bylaws.
(a) Amendment by Directors. Except as provided otherwise by law, these Bylaws may be amended or repealed by the Board
of Directors by the affirmative vote of a majority of the directors then in office.
(b) Amendment by Stockholders. Except as otherwise provided herein, the Bylaws of the Corporation may be amended or repealed
at any annual meeting of stockholders, or special meeting of stockholders called for such purpose, by the affirmative vote of the
majority of the outstanding shares of capital stock entitled to vote on such amendment or repeal, voting together as a single class.
SECTION
- Notices. If mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed
to the stockholder at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner
by which notice otherwise may be given to stockholders, any notice to stockholders may be given by electronic transmission in the
manner provided in Section 232 of the DGCL.
SECTION
- Waivers. A written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by
such person, whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to
the notice required to be given to such person. Neither the business to be transacted at, nor the purpose of, any meeting need
be specified in such a waiver.
Adopted July 6, 2023, and effective as of July 6,
2023.
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Exhibit 3.3
Exhibit 3.4
Exhibit99.1
VIVANIMEDICAL, INC.
PLANOF CONVERSION
This
Plan of Conversion (this “Plan”) sets forth certain terms of the conversion of Vivani Medical, Inc. (f/k/a Second
Sight Medical Products, Inc.), a California corporation (the “California Corporation”), to a Delaware corporation
(the “Delaware Corporation”), pursuant to the terms of the California Corporations Code (as amended, “CCC”)
and the General Corporation Law of the State of Delaware (as amended, the “DGCL”).
WITNESSETH:
WHEREAS,
the California Corporation was incorporated on May 22, 2003;
WHEREAS,
upon the terms and subject to the conditions set forth in this Plan, and in accordance with Section 1152 of the CCC and Section 265
of the DGCL, the California Corporation will be converted to a Delaware Corporation;
WHEREAS,
the board of directors of the California Corporation (the “Board”) has unanimously (i) determined that the Conversion
(as defined below) is advisable and in the best interests of the California Corporation and its stockholders and (ii) approved
and adopted this Plan, the Conversion, and the other documents and transactions contemplated by this Plan, including the Articles
of Incorporation and the Bylaws of the Delaware Corporation, the California Certificate of Conversion and the Delaware Certificate
of Conversion (as each is defined below);
WHEREAS,
the stockholders of the California Corporation have approved the principal terms of this Plan and the Conversion ; and
WHEREAS,
in connection with the Conversion, at the Effective Time (as hereinafter defined), each share of Common stock, no par value per
share (the “California Common Stock”), of the California Corporation issued and outstanding immediately prior to the
Effective Time shall be cancelled and converted into one share of Common stock, par value $0.0001 per share (the “Delaware
Common Stock”), of the Delaware Corporation.
The
mode of carrying out the Conversion into effect shall be as described in this Plan.
ARTICLEI
THECONVERSION
1.1 Conversion. At
the Effective Time (as hereinafter defined), the California Corporation will be converted to the Delaware Corporation, pursuant
to, and in accordance with, Section 1152 of the CCC and Section 265 of the DGCL (the “Conversion”), whereupon
the California Corporation will continue its existence in the organizational form of the Delaware Corporation, which will be subject
to the laws of the State of Delaware. The Board and the stockholders of the California Corporation have approved and adopted this
Plan, the Conversion, and the other documents and transactions contemplated by this Plan, including the Certificate of Incorporation
and Bylaws of the Delaware Corporation, the California Certificate of Conversion and the Delaware Certificate of Conversion.
1.2 Certificate
of Conversion. The California Corporation shall file a certificate of conversion in the form attached hereto
as Exhibit A (the “California Certificate of Conversion”) with the Secretary of State of the State of California
(the “California Secretary of State”) and shall file certificate of conversion in the form attached hereto as Exhibit B
(the “Delaware Certificate of Conversion”) with the Secretary of State of the State of Delaware, and the California
Corporation or the Delaware Corporation , as applicable, shall make all other filings or recordings required by the CCC or DGCL
in connection with the Conversion.
1.3 Effective
Time. The Conversion will become effective upon the filing of the California Certificate of Conversion with the
California Secretary of State and the Delaware Certificate of Conversion filed with the Delaware Secretary of State or at such
later time as specified in the California Certificate of Conversion and the Delaware Certificate of Conversion (the “Effective
Time”).
ARTICLEII
ORGANIZATION
2.1 Delaware
Governing Documents. At the Effective Time, the Certificate of Incorporation and Bylaws of the Delaware Corporation,
in the form attached hereto as Exhibits C and D (the “Delaware Governing Documents”), shall govern the Delaware
Corporation until amended and/or restated in accordance with the Delaware Governing Documents and applicable law.
2.2 Directors
and Officers. From and after the Effective Time, by virtue of the Conversion and without any further action on
the part of the California Corporation or its stockholders, the members of the Board and the officers of the California Corporation
holding their respective offices in the California Corporation existing immediately prior to the Effective Time shall continue
in their respective offices as members of the Board and officers of the Delaware Corporation.
ARTICLEIII
EFFECTOF THE CONVERSION
3.1 Effect
of Conversion. At the Effective Time, the effect of the Conversion will be as provided by this Plan and by the
applicable provisions of the CCC and the DGCL. Without limitation of the foregoing, for all purposes of the laws of the State
of California, all of the rights, privileges and powers of the California Corporation, and all property, real, personal and mixed,
and all debts due to the California Corporation, as well as all other things and causes of action belonging to the California
Corporation, shall remain vested in the Delaware Corporation and shall be the property of the Delaware Corporation, and all debts,
liabilities and duties of the California Corporation shall remain attached to the Delaware Corporation, and may be enforced against
the Delaware Corporation to the same extent as if said debts, liabilities and duties had originally been incurred or contracted
by the Delaware Corporation.
3.2 Conversion
of Shares. At the Effective Time, by virtue of the Conversion and without any further action on the part of the
California Corporation or the stockholders, each share of California Common Stock issued and outstanding immediately prior to
the Effective Time shall be cancelled and converted into one share of Delaware Common Stock.
ARTICLEIV
MISCELLANEOUS
4.1 Abandonment
or Amendment. At any time prior to the filing of the Certificate of Conversion with the California Secretary
of State, the Board may abandon the proposed Conversion and terminate this Plan to the extent permitted by law or may amend this
Plan.
4.2 Captions. The
captions in this Plan are for convenience only and shall not be considered a part, or to affect the construction or interpretation,
of any provision of this Plan.
4.3 Tax
Reporting. The Conversion is intended to be a “reorganization” for purposes of Section 368(a)
of the Internal Revenue Code of 1986, as amended (the “Code”), and this Plan of Conversion is hereby adopted as a
“plan of reorganization” for purposes of Section 368(a)(1)(F) of the Code.
4.4 Governing
Law. This Plan shall be governed by, and construed and interpreted in accordance with, the laws of the State
of California.