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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): September 29, 2023
HARROW,
INC.
(Exact
name of registrant as specified in its charter)
Delaware |
|
001-35814 |
|
45-0567010 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
102
Woodmont Blvd., Suite 610 |
|
|
Nashville,
Tennessee |
|
37205 |
(Address
of principal executive offices) |
|
(Zip
Code) |
Registrant’s
telephone number, including area code: (615) 733-4730
Harrow
Health, Inc.
(Former
Name or Former Address, if Changed Since Last Report)
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of exchange on which registered |
Common
Stock, $0.001 par value per share |
|
HROW |
|
The
Nasdaq Stock Market LLC |
8.625%
Senior Notes due 2026 |
|
HROWL |
|
The
Nasdaq Stock Market LLC |
11.875%
Senior Notes due 2027 |
|
HROWM |
|
The
Nasdaq Stock Market LLC |
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2
of the Securities Act of 1934: 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
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Effective
as of September 29, 2023, Harrow Health, Inc. (the “Company”) changed its corporate name to Harrow, Inc. (the “Name
Change”) pursuant to a certificate of amendment to the Company’s amended and restated certificate of incorporation filed
with the Secretary of State of the State of Delaware. On the effective date of the Name Change, the Company also amended and restated
its bylaws (the “Amended and Restated Bylaws”) solely to reflect the Name Change.
The
Name Change was previously approved by the Board of Directors of the Company. Under the Delaware General Corporation Law, the Company’s
stockholders were not required to approve the Name Change. The Name Change does not affect the rights of the Company’s stockholders.
Copies
of the Amended and Restated Certificate of Incorporation, as amended, and the Amended and Restated Bylaws are filed as Exhibit
3.1 and Exhibit 3.2, respectively, to this Current Report on Form 8-K and are
incorporated herein by reference.
The
press release announcing the Name Change is being furnished as Exhibit 99.1 to this Current Report on Form 8-K.
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.
|
HARROW,
INC.
(formerly
known as Harrow Health, Inc.) |
|
|
|
Dated:
September 29, 2023 |
By:
|
/s/
Andrew R. Boll |
|
|
Andrew
R. Boll |
|
|
Chief
Financial Officer |
Exhibit 3.1
Exhibit 3.2
AMENDED
AND RESTATED BYLAWS
OF
HARROW,
INC.
dated
as of September 29, 2023
Table
of Contents
|
|
|
|
Page |
ARTICLE
1 |
|
Offices |
|
1 |
|
|
|
|
|
Section
1.1 |
|
Registered
Office |
|
1 |
|
|
|
|
|
Section
1.2 |
|
Other
Offices |
|
1 |
|
|
|
|
|
ARTICLE
2 |
|
Stockholders’
Meetings |
|
1 |
|
|
|
|
|
Section
2.1 |
|
Place
of Meetings |
|
1 |
|
|
|
|
|
Section
2.2 |
|
Annual
Meetings |
|
2 |
|
|
|
|
|
Section
2.3 |
|
Special
Meetings |
|
2 |
|
|
|
|
|
Section
2.4 |
|
Notice
of Meetings |
|
2 |
|
|
|
|
|
Section
2.5 |
|
Quorum
and Voting |
|
4 |
|
|
|
|
|
Section
2.6 |
|
Voting
Rights |
|
4 |
|
|
|
|
|
Section
2.7 |
|
Voting
Procedures and Inspectors of Elections |
|
5 |
|
|
|
|
|
Section
2.8 |
|
List
of Stockholders |
|
6 |
|
|
|
|
|
Section
2.9 |
|
Stockholder
Proposals at Annual Meetings |
|
7 |
|
|
|
|
|
Section
2.10 |
|
Nominations
of Persons for Election to the Board of Directors |
|
9 |
|
|
|
|
|
Section
2.11 |
|
Action
Without Meeting |
|
10 |
|
|
|
|
|
ARTICLE
3 |
|
Directors |
|
11 |
|
|
|
|
|
Section
3.1 |
|
Number
and Term of Office |
|
11 |
|
|
|
|
|
Section
3.2 |
|
Powers |
|
12 |
|
|
|
|
|
Section
3.3 |
|
Vacancies |
|
12 |
|
|
|
|
|
Section
3.4 |
|
Resignations
and Removals |
|
12 |
|
|
|
|
|
Section
3.5 |
|
Meetings |
|
12 |
|
|
|
|
|
Section
3.6 |
|
Quorum
and Voting |
|
13 |
|
|
|
|
|
Section
3.7 |
|
Action
Without Meeting |
|
13 |
|
|
|
|
|
Section
3.8 |
|
Fees
and Compensation |
|
14 |
|
|
|
|
|
Section
3.9 |
|
Committees |
|
14 |
|
|
|
|
|
ARTICLE
4 |
|
Officers |
|
15 |
|
|
|
|
|
Section
4.1 |
|
Officers
Designated |
|
15 |
|
|
|
|
|
Section
4.2 |
|
Tenure
and Duties of Officers |
|
15 |
|
|
|
|
|
ARTICLE
5 |
|
Execution
of Corporate Instruments, and Voting of Securities Owned by the Corporation |
|
17 |
|
|
|
|
|
Section
5.1 |
|
Execution
of Corporate Instruments |
|
17 |
|
|
|
|
|
Section
5.2 |
|
Voting
of Securities Owned by Corporation |
|
17 |
ARTICLE
6 |
|
Shares
of Stock |
|
18 |
|
|
|
|
|
Section
6.1 |
|
Form
and Execution of Certificates |
|
18 |
|
|
|
|
|
Section
6.2 |
|
Lost
Certificates |
|
18 |
|
|
|
|
|
Section
6.3 |
|
Transfers |
|
18 |
|
|
|
|
|
Section
6.4 |
|
Fixing
Record Dates |
|
18 |
|
|
|
|
|
Section
6.5 |
|
Registered
Stockholders |
|
18 |
|
|
|
|
|
ARTICLE
7 |
|
Other
Securities of the Corporation |
|
19 |
|
|
|
|
|
ARTICLE
8 |
|
Indemnification
of Officers, Directors, Employees and Agents |
|
19 |
|
|
|
|
|
Section
8.1 |
|
Right
to Indemnification |
|
19 |
|
|
|
|
|
Section
8.2 |
|
Authority
to Advance Expenses |
|
20 |
|
|
|
|
|
Section
8.3 |
|
Right
of Claimant to Bring Suit |
|
20 |
|
|
|
|
|
Section
8.4 |
|
Provisions
Nonexclusive |
|
21 |
|
|
|
|
|
Section
8.5 |
|
Authority
to Insure |
|
21 |
|
|
|
|
|
Section
8.6 |
|
Survival
of Rights |
|
21 |
|
|
|
|
|
Section
8.7 |
|
Settlement
of Claims |
|
21 |
|
|
|
|
|
Section
8.8 |
|
Effect
of Amendment |
|
21 |
|
|
|
|
|
Section
8.9 |
|
Subrogation |
|
21 |
|
|
|
|
|
Section
8.10 |
|
No
Duplication of Payments |
|
21 |
|
|
|
|
|
Section
8.11 |
|
Saving
Clause |
|
22 |
|
|
|
|
|
ARTICLE
9 |
|
Notices |
|
22 |
|
|
|
|
|
ARTICLE
10 |
|
Amendments |
|
23 |
Exhibit
3.2
AMENDED
AND RESTATED BYLAWS
OF
HARROW,
INC.
a
Delaware corporation
ARTICLE
1
Offices
Section
1.1 Registered Office.
The
registered office of the Corporation in the State of Delaware shall be set forth in the Certificate of Incorporation of the Corporation.
Section
1.2 Other Offices.
The
Corporation may also have offices at such other places, either within or without the State of Delaware, as the Board of Directors may
from time to time determine or the business of the Corporation may require.
ARTICLE
2
Stockholders’
Meetings
Section
2.1 Place of Meetings.
(a)
Meetings of stockholders may be held at such place, either within or without the State of Delaware, as may be designated by or in the
manner provided in these Bylaws or, if not so designated, as determined by the Board of Directors. The Board of Directors may, in its
sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication
as authorized by paragraph (b) of this Section 2.1.
(b)
If authorized by the Board of Directors in its sole discretion, and subject to such guidelines and procedures as the Board of Directors
may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication:
(1)
Participate in a meeting of stockholders; and
(2)
Be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely
by means of remote communication, provided that (A) the Corporation shall implement reasonable measures to verify that each person deemed
present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (B) the Corporation shall
implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and
to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially
concurrently with such proceedings, and (C) if any stockholder or proxyholder votes or takes other action at the meeting by means of
remote communication, a record of such vote or other action shall be maintained by the Corporation.
(c)
For purposes of these Bylaws, “remote communication” shall include (1) telephone or other voice communications and (2) electronic
mail or other form of written or visual electronic communications satisfying the requirements of Section 2.11(b).
Section
2.2 Annual Meetings.
The
annual meetings of the stockholders of the Corporation, for the purpose of election of directors and for such other business as may lawfully
come before it, shall be held on such date and at such time as may be designated from time to time by the Board of Directors.
Section
2.3 Special Meetings.
Special
meetings of the stockholders of the Corporation may be called, for any purpose or purposes, by the Chairman of the Board or the President
or the Board of Directors at any time. Only such business shall be brought before a special meeting of stockholders as shall have been
specified in the notice of such meeting.
Section
2.4 Notice of Meetings.
(a)
Except as otherwise provided by law or the Certificate of Incorporation, written notice of each meeting of stockholders, specifying the
place, if any, date and hour and purpose or purposes of the 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, and the record date for determining the stockholders
entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the
meeting, shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder entitled to vote thereat,
directed to his address as it appears upon the books of the Corporation; except that where the matter to be acted on is a merger or consolidation
of the Corporation or a sale, lease or exchange of all or substantially all of its assets, such notice shall be given not less than 20
nor more than 60 days prior to such meeting. If the Board of Directors fixes a date for determining the stockholders entitled to notice
of a meeting of stockholders, such date shall also be the record date for determining the stockholders entitled to vote at such meeting,
unless the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting
shall be the date for making such determination.
(b)
If at any meeting action is proposed to be taken which, if taken, would entitle stockholders fulfilling the requirements of Section 262(d)
of the Delaware General Corporation Law to an appraisal of the fair value of their shares, the notice of such meeting shall contain a
statement of that purpose and to that effect and shall be accompanied by a copy of that statutory section.
(c)
When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time, place, if any, thereof,
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 adjourned meeting, are announced at the meeting at which the adjournment is taken unless the adjournment is for more than thirty
days, or unless after the adjournment a new record date is fixed for the adjourned meeting, in which event a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the meeting; provided, however, that the Board of Directors
may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix
as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination
of stockholders entitled to vote at the adjourned meeting.
(d)
Notice of the time, place and purpose of any meeting of stockholders may be waived in writing, either before or after such meeting, and,
to the extent permitted by law, will be waived by any stockholder by his attendance thereat, in person or by proxy. Any stockholder so
waiving notice of such meeting shall be bound by the proceedings of any such meeting in all respects as if due notice thereof had been
given.
(e)
Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the
Corporation under any provision of Delaware General Corporation Law, the Certificate of Incorporation, or these Bylaws shall be effective
if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any such consent shall be
revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revoked if (i) the Corporation is
unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent, and (ii)
such inability becomes known to the Secretary or an Assistant Secretary of the Corporation or to the transfer agent or other person responsible
for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any
meeting or other action. Notice given pursuant to this subparagraph (e) shall be deemed given: (1) if by facsimile telecommunication,
when directed to a number at which the stockholder has consented to receive notice; (2) if by electronic mail, when directed to an electronic
mail address at which the stockholder has consented to receive notice; (3) if by a posting on an electronic network together with separate
notice to the stockholder of such specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and
(4) if by any other form of electronic transmission, when directed to the stockholder. An affidavit of the Secretary or an Assistant
Secretary or of the transfer agent or other agent of the Corporation that the notice has been given by a form of electronic transmission
shall, in the absence of fraud, be prima facie evidence of the facts stated therein. For purposes of these Bylaws, “electronic
transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record
that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process.
Section
2.5 Quorum and Voting.
(a)
At all meetings of stockholders except where otherwise provided by law, the Certificate of Incorporation or these Bylaws, the presence,
in person or by proxy duly authorized, of the holders of a majority of the outstanding shares of stock entitled to vote shall constitute
a quorum for the transaction of business. Shares, the voting of which at said meeting have been enjoined, or which for any reason cannot
be lawfully voted at such meeting, shall not be counted to determine a quorum at said meeting. In the absence of a quorum, any meeting
of stockholders may be adjourned, from time to time, by vote of the holders of a majority of the shares represented thereat, but no other
business shall be transacted at such meeting. At such adjourned meeting at which a quorum is present or represented, any business may
be transacted which might have been transacted at the original meeting. The stockholders present at a duly called or convened meeting
at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum.
(b)
Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, all action taken by the holders of a majority
of the votes cast on a matter affirmatively or negatively shall be valid and binding upon the Corporation. For purposes of these Bylaws,
a share present at a meeting, but for which there is an abstention or as to which a stockholder gives no authority or direction as to
a particular proposal or director nominee, shall be counted as present for the purpose of establishing a quorum but shall not be counted
as a vote cast.
(c)
Where a separate vote by a class or classes is required, a majority of the outstanding shares of such class or classes present in person
or represented by proxy shall constitute a quorum entitled to take action with respect to that vote on that matter, and the affirmative
vote of the majority of votes cast of such class or classes present in person or represented by proxy at the meeting shall be the act
of such class.
Section
2.6 Voting Rights.
(a)
Except as otherwise provided by law, only persons in whose names shares entitled to vote stand on the stock records of the Corporation
on the record date for determining the stockholders entitled to vote at said meeting shall be entitled to vote at such meeting. Shares
standing in the names of two or more persons shall be voted or represented in accordance with the determination of the majority of such
persons, or, if only one of such persons is present in person or represented by proxy, such person shall have the right to vote such
shares and such shares shall be deemed to be represented for the purpose of determining a quorum.
(b)
Every person entitled to vote or to execute consents shall have the right to do so either in person or by an agent or agents authorized
by a written proxy executed by such person or his duly authorized agent, which proxy shall be filed with the Secretary of the Corporation
at or before the meeting at which it is to be used. Said proxy so appointed need not be a stockholder. No proxy shall be voted on after
three (3) years from its date unless the proxy provides for a longer period. Unless and until voted, every proxy shall be revocable at
the pleasure of the person who executed it or of his legal representatives or assigns, except in those cases where an irrevocable proxy
permitted by statute has been given.
(c)
Without limiting the manner in which a stockholder may authorize another person or persons to act for him as proxy pursuant to subsection
(b) of this section, the following shall constitute a valid means by which a stockholder may grant such authority:
(1)
A stockholder may execute a writing authorizing another person or persons to act for him as proxy. Execution may be accomplished by the
stockholder or his authorized officer, director, employee or agent signing such writing or causing his or her signature to be affixed
to such writing by any reasonable means including, but not limited to, by facsimile signature.
(2)
A stockholder may authorize another person or persons to act for him as proxy by transmitting or authorizing the transmission of an electronic
transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or
like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such transmission
must either set forth or be submitted with information from which it can be determined that the transmission was authorized by the stockholder.
Such authorization can be established by the signature of the stockholder on the proxy, either in writing or by a signature stamp or
facsimile signature, or by a number or symbol from which the identity of the stockholder can be determined, or by any other procedure
deemed appropriate by the inspectors or other persons making the determination as to due authorization. If it is determined that such
transmissions are valid, the inspectors or, if there are no inspectors, such other persons making that determination shall specify the
information upon which they relied.
(d)
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to subsection (c)
of this section may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original
writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or transmission.
Section
2.7 Voting Procedures and Inspectors of Elections.
(a)
The Corporation shall, in advance of any meeting of stockholders, appoint one or more 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 person presiding at the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the discharge of his duties, shall take and sign an oath faithfully
to execute the duties of inspector with strict impartiality and according to the best of his ability.
(b)
The inspectors shall (i) ascertain the number of shares outstanding and the voting power of each, (ii) determine the shares represented
at a meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period
a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the
number of shares represented at the meeting and their count of all votes and ballots. The inspectors may appoint or retain other persons
or entities to assist the inspectors in the performance of the duties of the inspectors.
(c)
The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall
be announced at the meeting. No ballot, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the inspectors
after the closing of the polls unless the Court of Chancery shall determine otherwise upon application by a stockholder.
(d)
In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any
envelopes submitted with those proxies, any information provided in accordance with Sections 211(e) or 212(c)(2) of the Delaware General
Corporation Law, or any information provided pursuant to Section 211(a)(2)(B)(i) or (iii) thereof, ballots and the regular books and
records of the Corporation, except that the inspectors may consider other reliable information for the limited purpose of reconciling
proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the
holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors consider
other reliable information for the limited purpose permitted herein, the inspectors at the time they make their certification pursuant
to subsection (b)(v) of this section shall specify the precise information considered by them including the person or persons from whom
they obtained the information, when the information was obtained, the means by which the information was obtained and the basis for the
inspectors’ belief that such information is accurate and reliable.
Section
2.8 List of Stockholders.
The
officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders,
a complete list of the stockholders entitled to vote at said meeting, arranged in alphabetical order, showing the address of and the
number of shares registered in the name of each stockholder. The Corporation need not include electronic mail addresses or other electronic
contact information on such list. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting
for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours at the principal
place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network,
the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the
meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication,
then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible
electronic network, and the information required to access such list shall be provided with the notice of the meeting.
Section
2.9 Stockholder Proposals at Annual Meetings.
At
an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting.
To be properly brought before an annual meeting, business must be (i) specified in the notice of meeting (or any supplement thereto)
given by or at the direction of the Board of Directors, (ii) otherwise properly brought before the meeting by or at the direction of
the Board of Directors, or (iii) otherwise properly brought before the meeting by a stockholder who complies with the procedures set
forth in this Section 2.9. The foregoing clause (iii) shall be the exclusive means for a stockholder to propose business (other than
business included in the Corporation’s proxy materials pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)) at an annual meeting of stockholders.
In
addition to any other applicable requirements for business to be properly brought before an annual meeting by a stockholder, whether
or not the stockholder is seeking to have a proposal included in the Corporation’s proxy statement or information statement under
Rule 14a-8 under the Exchange Act, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation.
To be timely, in the case of a stockholder seeking to have a proposal included in the Corporation’s proxy statement or information
statement, a stockholder’s notice must be delivered to the Secretary at the Corporation’s principal executive offices not
less than 120 days or more than 180 days prior to the first anniversary of the date on which the Corporation first mailed its proxy materials
(or, in the absence of proxy materials, its notice of meeting) for the previous year’s annual meeting of stockholders. However,
if the Corporation did not hold an annual meeting the previous year, or if the date of the annual meeting is advanced more than 30 days
prior to or delayed by more than 30 days after the anniversary of the preceding year’s annual meeting, then to be timely, notice
by the stockholder must be delivered to the Secretary at the Corporation’s principal executive offices not later than the close
of business on the later of (i) the 90th day prior to such annual meeting or (ii) the 15th day following the day
on which public announcement of the date of such meeting is first made. If the stockholder is not seeking inclusion of the proposal in
the Corporation’s proxy statement or information statement, timely notice consists of a stockholder’s notice delivered to
or mailed and received at the principal executive offices of the Corporation not less than 90 days prior to the date of the annual meeting.
In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the
giving of a stockholder’s notice as described above. Other than with respect to stockholder proposals relating to director nomination(s),
which requirements are set forth in Section 2.10 below, a stockholder’s notice to the Secretary shall set forth as to each matter
the stockholder proposes to bring before the annual meeting (i) a brief description of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual meeting, (ii) the name and record address of the stockholder
proposing such business, (iii) the class and number of shares of the Corporation which are beneficially owned by the stockholder, (iv)
any material interest of the stockholder in such business, (v) as to the stockholder giving the notice and any Stockholder Associated
Person (as defined below) or any member of such stockholder’s immediate family sharing the same household, whether and the extent
to which any hedging or other transaction or series of transactions has been entered into by or on behalf of, or any other agreement,
arrangement or understanding (including, but not limited to, any short position or any borrowing or lending of shares of stock) has been
made, the effect or intent of which is to mitigate loss or increase profit to or manage the risk or benefit of stock price changes for,
or to increase or decrease the voting power of, such stockholder, such Stockholder Associated Person or family member with respect to
any share of stock of the Corporation (each, a “Relevant Hedge Transaction”), and (vi) as to the stockholder giving the notice
and any Stockholder Associated Person or any member of such stockholder’s immediate family sharing the same household, to the extent
not set forth pursuant to the immediately preceding clause, (a) whether and the extent to which such stockholder, Stockholder Associated
Person or family member has direct or indirect beneficial ownership of any option, warrant, convertible security, stock appreciation
right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class
or series of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class
or series of capital stock of the Corporation or otherwise, or any other direct or indirect opportunity to profit or share in any profit
derived from any increase or decrease in the value of shares of the Corporation (a “Derivative Instrument”), (b) any rights
to dividends on the shares of the Corporation owned beneficially by such stockholder, Stockholder Associated Person or family member
that are separated or separable from the underlying shares of the Corporation, (c) any proportionate interest in shares of the Corporation
or Derivative Instruments held, directly or indirectly, by a general or limited partnership in which such stockholder, Stockholder Associated
Person or family member is a general partner or, directly or indirectly, beneficially owns an interest in a general partner and (d) any
performance-related fees (other than an asset-based fee) that such stockholder, Stockholder Associated Person or family member is entitled
to based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, as of the date of such
notice (which information shall be supplemented by such stockholder and beneficial owner, if any, not later than 10 days after the record
date for the meeting to disclose such ownership as of the record date).
For
purposes of this Section 2.9 and Section 2.10, “Stockholder Associated Person” of any stockholder shall mean (i) any person
controlling or controlled by, directly or indirectly, or acting in concert with, such stockholder, (ii) any beneficial owner of shares
of stock of the Corporation owned of record or beneficially by such stockholder and (iii) any person controlling, controlled by or under
common control with such Stockholder Associated Person.
Notwithstanding
anything in the Bylaws to the contrary, no business shall be conducted at the annual meeting except in accordance with the procedures
set forth in Section 2.1 and this Section 2.9, provided, however, that nothing in this Section 2.9 shall be deemed to preclude discussion
by any stockholder of any business properly brought before the annual meeting in accordance with said procedure.
The
chairman of an annual meeting shall, if the facts warrant, determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of Section 2.1 and this Section 2.9, and if he should so determine he shall so declare
to the meeting, and any such business not properly brought before the meeting shall not be transacted.
Nothing
in this Section 2.9 shall affect the right of a stockholder to request inclusion of a proposal in the Corporation’s proxy statement
or information statement pursuant to Rule 14a-8 under the Exchange Act.
Section
2.10 Nominations of Persons for Election to the Board of Directors.
In
addition to any other applicable requirements, only persons who are nominated in accordance with the following procedures shall be eligible
for election as directors. Nominations of persons for election to the Board of Directors of the Corporation may be made at a meeting
of stockholders (i) pursuant to the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of
the Board of Directors, (ii) by or at the direction of the Board of Directors, or by any nominating committee or person appointed by
the Board of Directors or (iii) by any stockholder of the Corporation entitled to vote for the election of directors at the meeting who
complies with the notice procedures set forth in this Section 2.10. The foregoing clause (iii) shall be the exclusive means for a stockholder
to make nominations at a meeting of stockholders. A stockholder who complies with the notice procedures set forth in this Section 2.10
is permitted to present the nomination at the meeting of stockholders but is not entitled to have a nominee included in the Corporation’s
proxy statement in the absence of an applicable rule of the U.S. Securities and Exchange Commission requiring the Corporation to include
a director nomination made by a stockholder in the Corporation’s proxy statement or information statement.
Such
nominations, other than those made by or at the direction of the Board of Directors, shall be made pursuant to timely notice in writing
to the Secretary of the Corporation. To be timely, notice by the stockholder must be delivered to the Secretary at the Corporation’s
principal executive offices not later than 90 days prior to the date of the annual meeting. In no event shall any adjournment or postponement
of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice as described
above. The stockholder’s notice relating to director nomination(s) shall set forth (a) as to each person whom the stockholder proposes
to nominate for election or re-election as a director, (i) the name, age, business address and residence address of the person, (ii)
the principal occupation or employment of the person, (iii) the class and number of shares of the Corporation which are beneficially
owned by the person, and (iv) any other information relating to the person that is required to be disclosed in solicitations for proxies
for election of directors pursuant to Regulation 14A under the Exchange Act; (b) as to the stockholder giving the notice, (i) the name
and record address of the stockholder, and (ii) the class and number of shares of the Corporation which are beneficially owned by the
stockholder; (c) as to the stockholder giving the notice and any Stockholder Associated Person (as defined in Section 2.9), to the extent
not set forth pursuant to the immediately preceding clause, whether and the extent to which any Relevant Hedge Transaction (as defined
in Section 2.9) has been entered into, and (d) as to the stockholder giving the notice and any Stockholder Associated Person, (1) whether
and the extent to which any Derivative Instrument (as defined in Section 2.9) is directly or indirectly beneficially owned, (2) any rights
to dividends on the shares of the Corporation owned beneficially by such stockholder that are separated or separable from the underlying
shares of the Corporation, (3) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly,
by a general or limited partnership in which such stockholder is a general partner or, directly or indirectly, beneficially owns an interest
in a general partner and (4) any performance-related fees (other than an asset-based fee) that such stockholder is entitled to based
on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, as of the date of such notice,
including without limitation any such interests held by members of such stockholder’s immediate family sharing the same household
(which information shall be supplemented by such stockholder and beneficial owner, if any, not later than 10 days after the record date
for the meeting to disclose such ownership as of the record date). The Corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director
of the Corporation. The stockholder giving such notice shall indemnify the Corporation in respect of any loss arising as a result of
any false or misleading information or statement submitted by the nominating stockholder in connection with the nomination, as provided
by Section 112(5) of the Delaware General Corporation Law. No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth herein. These provisions shall not apply to nomination of any persons entitled
to be separately elected by holders of preferred stock.
For
purposes of this Section 2.10, “Stockholder Associated Person” of any stockholder shall mean (i) any person controlling or
controlled by, directly or indirectly, or acting in concert with, such stockholder, (ii) any beneficial owner of shares of stock of the
Corporation owned of record or beneficially by such stockholder and (iii) any person controlling, controlled by or under common control
with such Stockholder Associated Person.
The
chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance
with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be
disregarded.
Section
2.11 Action Without Meeting.
(a)
Unless otherwise provided in the Certificate of Incorporation, any action required by statute to be taken at any annual or special meeting
of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken
without a meeting, without prior notice and without a vote, if a consent or consents in writing setting forth the action so taken are
signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take
such action at a meeting at which all shares entitled to vote thereon were present and voted. To be effective, a written consent must
be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent
of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to a Corporation’s
registered office shall be by hand or by certified or registered mail, return receipt requested. Every written consent shall bear the
date of signature of each stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred
to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this section to the Corporation,
written consents signed by a sufficient number of holders to take action are delivered to the Corporation in accordance with this section.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing.
(b)
An electronic transmission consent to an action to be taken and transmitted by a stockholder or proxyholder, or by a person or persons
authorized to act for a stockholder or proxyholder, shall be deemed to be written, signed and dated for the purposes of this section,
provided that any such electronic transmission sets forth or is delivered with information from which the Corporation can determine (i)
that the electronic transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the
stockholder or proxyholder, and (ii) the date on which such stockholder or proxyholder or authorized person or persons transmitted such
electronic transmission. The date on which such electronic transmission is transmitted shall be deemed to be the date on which such consent
was signed. No consent given by electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper
form and until such paper form shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its
principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery made to a Corporation’s registered office shall be made by hand or by certified or registered
mail, return receipt requested. Notwithstanding the foregoing limitations on delivery, consents given by electronic transmission may
be otherwise delivered to the principal place of business of the Corporation or to an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded if to the extent and in the manner provided by resolution of
the Board of Directors of the Corporation.
(c)
Any copy, facsimile or other reliable reproduction of a consent in writing may be substituted or used in lieu of the original writing
for any and all purposes for which the original writing could be used, provided that such copy, facsimile or other reproduction shall
be a complete reproduction of the entire original writing.
ARTICLE
3
Directors
Section
3.1 Number and Term of Office.
(a)
The number of directors of the corporation shall not be less than one (1) nor more than ten (10) until changed by amendment of the Certificate
of Incorporation or by a Bylaw amending this Section 3.1 duly adopted by the vote or written consent of holders of a majority of the
outstanding shares or by the Board of Directors. The exact number of directors shall be fixed from time to time, within the limits specified
in the Certificate of Incorporation or in this Section 3.1, by a bylaw or amendment thereof duly adopted by the vote of a majority of
the shares entitled to vote represented at a duly held meeting at which a quorum is present, or by the written consent of the holders
of a majority of the outstanding shares entitled to vote, or by the Board of Directors. Subject to the foregoing provisions for changing
the number of directors, the number of directors of the corporation has been fixed at five (5). In no case will a decrease in the number
of directors shorten the term of any incumbent director.
(b)
With the exception of the first Board of Directors, which shall be elected by the incorporators, and except as provided in Section 3.3
of this Article III, the directors shall be elected by a plurality vote of the votes cast and entitled to vote on the election of directors
at any meeting for the election of directors at which a quorum is present. Elected directors shall hold office until the next annual
meeting and until their successors shall be duly elected and qualified. Directors need not be stockholders. If, for any cause, the Board
of Directors shall not have been elected at an annual meeting, they may be elected as soon thereafter as convenient at a special meeting
of the stockholders called for that purpose in the manner provided in these Bylaws
Section
3.2 Powers.
The
powers of the Corporation shall be exercised, its business conducted and its property controlled by or under the direction of the Board
of Directors.
Section
3.3 Vacancies.
Vacancies
and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the
directors then in office, although less than a quorum, or by a sole remaining director, and each director so elected shall hold office
for the unexpired portion of the term of the director whose place shall be vacant and until his successor shall have been duly elected
and qualified. A vacancy in the Board of Directors shall be deemed to exist under this section in the case of the death, removal or resignation
of any director, or if the stockholders fail at any meeting of stockholders at which directors are to be elected (including any meeting
referred to in Section 3.4 below) to elect the number of directors then constituting the whole Board of Directors.
Section
3.4 Resignations and Removals.
(a)
Any director may resign at any time by delivering his resignation to the Secretary in writing or by electronic transmission, such resignation
to specify whether it will be effective at a particular time, upon receipt by the Secretary or at the pleasure of the Board of Directors.
If no such specification is made it shall be deemed effective at the pleasure of the Board of Directors. When one or more directors shall
resign from the Board of Directors effective at a future date, a majority of the directors then in office, including those who have so
resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall
become effective, and each director so chosen shall hold office for the unexpired portion of the term of the director whose place shall
be vacated and until his successor shall have been duly elected and qualified.
(b)
At a special meeting of stockholders called for the purpose in the manner hereinabove provided, the Board of Directors or any individual
director may be removed from office, with or without cause, and a new director or directors elected by a vote of stockholders holding
a majority of the outstanding shares entitled to vote at an election of directors.
Section
3.5 Meetings.
(a)
The annual meeting of the Board of Directors shall be held immediately after the annual stockholders’ meeting and at the place
where such meeting is held or at the place announced by the chairman at such meeting. No notice of an annual meeting of the Board of
Directors shall be necessary, and such meeting shall be held for the purpose of electing officers and transacting such other business
as may lawfully come before it.
(b)
Except as hereinafter otherwise provided, regular meetings of the Board of Directors shall be held at the principal executive office
of the Corporation. Regular meetings of the Board of Directors may also be held at any place, within or without the State of Delaware,
which has been designated by resolutions of the Board of Directors or the written consent of all directors.
(c)
Special meetings of the Board of Directors may be held at any time and place within or without the State of Delaware whenever called
by the Chairman of the Board or, if there is no Chairman of the Board, by the President, or by any of the directors.
(d)
Written notice of the time and place of all regular and special meetings of the Board of Directors shall be delivered personally to each
director or sent by any form of electronic transmission at least 48 hours before the start of the meeting, or sent by first class mail
at least 120 hours before the start of the meeting. Notice of any meeting may be waived in writing at any time before or after the meeting
and will be waived by any director by attendance thereat.
Section
3.6 Quorum and Voting.
(a)
A quorum of the Board of Directors shall consist of a majority of the exact number of directors fixed from time to time in accordance
with Section 3.1 of Article III of these Bylaws, but not less than one; provided, however, at any meeting, whether a quorum be present
or otherwise, a majority of the directors present may adjourn from time to time until the time fixed for the next regular meeting of
the Board of Directors, without notice other than by announcement at the meeting.
(b)
At each meeting of the Board of Directors at which a quorum is present, all questions and business shall be determined by a vote of a
majority of the directors present, unless a different vote be required by law, the Certificate of Incorporation, or these Bylaws.
(c)
Any member of the Board of Directors, or of any committee thereof, may participate in a meeting by means of conference telephone or other
communication equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting
by such means shall constitute presence in person at such meeting.
(d)
The transactions of any meeting of the Board of Directors, or any committee thereof, however called or noticed, or wherever held, shall
be as valid as though had at a meeting duly held after regular call and notice if a quorum be present and if, either before or after
the meeting, each of the directors not present shall sign a written waiver of notice, or a consent to holding such meeting, or an approval
of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes
of the meeting.
Section
3.7 Action Without Meeting.
Unless
otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting
of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board of Directors or of
such committee, as the case may be, consent thereto in writing or by electronic transmission, and such writing or writings or electronic
transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or committee. Such filing shall be
in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic
form.
Section
3.8 Fees and Compensation.
Directors
and members of committees may receive such compensation, if any, for their services, and such reimbursement for expenses, as may be fixed
or determined by resolution of the Board of Directors.
Section
3.9 Committees.
(a)
Executive Committee: The Board of Directors may appoint an Executive Committee of not less than one member, each of whom shall
be a director. The Executive Committee, to the extent permitted by law, shall have and may exercise when the Board of Directors is not
in session all powers of the Board in the management of the business and affairs of the corporation, except such committee shall not
have the power or authority to amend these Bylaws or to approve or recommend to the stockholders any action which must be submitted to
stockholders for approval under the General Corporation Law.
(b)
Other Committees: The Board of Directors may, by resolution passed by a majority of the whole Board of Directors, from time to
time appoint such other committees as may be permitted by law. Such other committees appointed by the Board of Directors shall have such
powers and perform such duties as may be prescribed by the resolution or resolutions creating such committee, but in no event shall any
such committee have the powers denied to the Executive Committee in these Bylaws.
(c)
Term: The terms of members of all committees of the Board of Directors shall expire on the date of the next annual meeting of
the Board of Directors following their appointment; provided that they shall continue in office until their successors are appointed.
Subject to the provisions of subsections (a) or (b) of this Section 3.9, the Board of Directors may at any time increase or decrease
the number of members of a committee or terminate the existence of a committee; provided that no committee shall consist of less than
one member. The membership of a committee member shall terminate on the date of his death or voluntary resignation, but the Board of
Directors may at any time for any reason remove any individual committee member and the Board of Directors may fill any committee vacancy
created by death, resignation, removal or increase in the number of members of the committee. The Board of Directors may designate one
or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee,
and, in addition, in the absence or disqualification of any member of a committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board
of Directors to act at the meeting in the place of any such absent or disqualified member.
(d)
Meetings: Unless the Board of Directors shall otherwise provide, regular meetings of the Executive Committee or any other committee
appointed pursuant to this Section 3.9 shall be held at such times and places as are determined by the Board of Directors, or by any
such committee, and when notice thereof has been given to each member of such committee, no further notice of such regular meetings need
be given thereafter; special meetings of any such committee may be held at the principal executive office of the Corporation or at any
place which has been designated from time to time by resolution of such committee or by written consent of all members thereof, and may
be called by any director who is a member of such committee upon written notice to the members of such committee of the time and place
of such special meeting given in the manner provided for the giving of written notice to members of the Board of Directors of the time
and place of special meetings of the Board of Directors. Notice of any special meeting of any committee may be waived in writing at any
time after the meeting and will be waived by any director by attendance thereat. A majority of the authorized number of members of any
such committee shall constitute a quorum for the transaction of business, and the act of a majority of those present at any meeting at
which a quorum is present shall be the act of such committee.
ARTICLE
4
Officers
Section
4.1 Officers Designated.
The
officers of the Corporation shall be a President, a Secretary and a Treasurer. The Board of Directors or the President may also appoint
a Chairman of the Board, one or more Vice-Presidents, Assistant Secretaries, Assistant Treasurers, and such other officers and agents
with such powers and duties as it or he shall deem necessary. The order of the seniority of the Vice- Presidents shall be in the order
of their nomination unless otherwise determined by the Board of Directors. The Board of Directors may assign such additional titles to
one or more of the officers as they shall deem appropriate. Any one person may hold any number of offices of the Corporation at any one
time unless specifically prohibited therefrom by law. The salaries and other compensation of the officers of the Corporation shall be
fixed by or in the manner designated by the Board of Directors.
Section
4.2 Tenure and Duties of Officers.
(a)
General: All officers shall hold office at the pleasure of the Board of Directors and until their successors shall have been duly
elected and qualified, unless sooner removed. Any officer elected or appointed by the Board of Directors may be removed at any time by
the Board of Directors. If the office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors.
Nothing in these Bylaws shall be construed as creating any kind of contractual right to employment with the Corporation.
(b)
Duties of the Chairman of the Board of Directors: The Chairman of the Board of Directors (if there be such an officer appointed)
when present shall preside at all meetings of the stockholders and the Board of Directors. The Chairman of the Board of Directors shall
perform such other duties and have such other powers as the Board of Directors shall designate from time to time.
(c)
Duties of President: The President shall be the chief executive officer of the Corporation and shall preside at all meetings of
the stockholders and at all meetings of the Board of Directors, unless the Chairman of the Board of Directors has been appointed and
is present. The President shall perform such other duties and have such other powers as the Board of Directors shall designate from time
to time.
(d)
Duties of Vice-Presidents: The Vice-Presidents, in the order of their seniority, may assume and perform the duties of the President
in the absence or disability of the President or whenever the office of the President is vacant. The Vice-President shall perform such
other duties and have such other powers as the Board of Directors or the President shall designate from time to time.
(e)
Duties of Secretary: The Secretary shall attend all meetings of the stockholders and of the Board of Directors and any committee
thereof, and shall record all acts and proceedings thereof in the minute book of the Corporation, which may be maintained in either paper
or electronic form. The Secretary shall give notice, in conformity with these Bylaws, of all meetings of the stockholders and of all
meetings of the Board of Directors and any Committee thereof requiring notice. The Secretary shall perform such other duties and have
such other powers as the Board of Directors shall designate from time to time. The President may direct any Assistant Secretary to assume
and perform the duties of the Secretary in the absence or disability of the Secretary, and each Assistant Secretary shall perform such
other duties and have such other powers as the Board of Directors or the President shall designate from time to time.
(f)
Duties of Treasurer: The Treasurer shall keep or cause to be kept the books of account of the Corporation in a thorough and proper
manner, and shall render statements of the financial affairs of the Corporation in such form and as often as required by the Board of
Directors or the President. The Treasurer, subject to the order of the Board of Directors, shall have the custody of all funds and securities
of the Corporation. The Treasurer shall perform all other duties commonly incident to his office and shall perform such other duties
and have such other powers as the Board of Directors or the President shall designate from time to time. The President may direct any
Assistant Treasurer to assume and perform the duties of the Treasurer in the absence or disability of the Treasurer, and each Assistant
Treasurer shall perform such other duties and have such other powers as the Board of Directors or the President shall designate from
time to time.
ARTICLE
5
Execution of Corporate Instruments, and
Voting of Securities Owned by the Corporation
Section
5.1 Execution of Corporate Instruments.
(a)
The Board of Directors may in its discretion determine the method and designate the signatory officer or officers, or other person or
persons, to execute any corporate instrument or document, or to sign the corporate name without limitation, except where otherwise provided
by law, and such execution or signature shall be binding upon the Corporation.
(b)
Unless otherwise specifically determined by the Board of Directors or otherwise required by law, formal contracts of the Corporation,
promissory notes, deeds of trust, mortgages and other evidences of indebtedness of the Corporation, and other corporate instruments or
documents requiring the corporate seal, and certificates of shares of stock owned by the Corporation, shall be executed, signed or endorsed
by the Chairman of the Board (if there be such an officer appointed) or by the President; such documents may also be executed by any
Vice-President and by the Secretary or Treasurer or any Assistant Secretary or Assistant Treasurer. All other instruments and documents
requiring the corporate signature but not requiring the corporate seal may be executed as aforesaid or in such other manner as may be
directed by the Board of Directors.
(c)
All checks and drafts drawn on banks or other depositaries on funds to the credit of the Corporation or in special accounts of the Corporation
shall be signed by such person or persons as the Board of Directors shall authorize so to do.
(d)
Execution of any corporate instrument may be effected in such form, either manual, facsimile or electronic signature, as may be authorized
by the Board of Directors.
Section
5.2 Voting of Securities Owned by Corporation.
All
stock and other securities of other Corporations owned or held by the Corporation for itself or for other parties in any capacity shall
be voted, and all proxies with respect thereto shall be executed, by the person authorized so to do by resolution of the Board of Directors
or, in the absence of such authorization, by the Chairman of the Board (if there be such an officer appointed), or by the President,
or by any Vice-President.
ARTICLE
6
Shares of Stock
Section
6.1 Form and Execution of Certificates.
The
shares of the Corporation shall be represented by certificates, provided that 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. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the Corporation. Certificates for the shares of stock of
the Corporation shall be in such form as is consistent with the Certificate of Incorporation and applicable law. Every holder of stock
in the Corporation shall be entitled to have a certificate signed by, or in the name of the Corporation by, the Chairman of the Board
(if there be such an officer appointed), or by the President or any Vice-President and by the Treasurer or Assistant Treasurer or the
Secretary or Assistant Secretary, certifying the number of shares owned by him in the Corporation. Any or all of the signatures on the
certificate may be a facsimile. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been
placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may
be issued with the same effect as if he were such officer, transfer agent, or registrar at the date of issue. If the Corporation shall
be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions
of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the Corporation
shall issue to represent such class or series of stock, provided that, except as otherwise provided in Section 202 of the Delaware General
Corporation Law, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the Corporation
shall issue to represent such class or series of stock, a statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of
stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
Section
6.2 Lost Certificates.
The
Board of Directors may direct a new certificate or certificates (or uncertificated shares in lieu of a new certificate) to be issued
in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of
a new certificate or certificates (or uncertificated shares in lieu of a new certificate), the Board of Directors may, in its discretion
and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his
legal representative, to indemnify the Corporation in such manner as it shall require and/or to give the Corporation a surety bond in
such form and amount as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate
alleged to have been lost or destroyed.
Section
6.3 Transfers.
Transfers
of record of shares of stock of the Corporation shall be made only upon its books by the holders thereof, in person or by attorney duly
authorized, who shall furnish proper evidence of authority to transfer, and in the case of stock represented by a certificate, upon the
surrender of a certificate or certificates for a like number of shares, properly endorsed.
Section
6.4 Fixing Record Dates.
(a)
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, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing
the record date is adopted by the Board of Directors, and which record date shall not be more than 60 nor less than 10 days before the
date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to
notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day next preceding the date on which the meeting is held. A determination
of stockholders of record entitled notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned meeting.
(b)
In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing or by electronic transmission
without a meeting, 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 date shall not be more than 10 days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors,
the record date for determining stockholders entitled to consent to corporate action in writing or by electronic transmission without
a meeting, when no prior action by the Board of Directors is required by the Delaware General Corporation Law, shall be the first date
on which a signed written consent or electronic transmission setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in Delaware, its principal place of business, or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are recorded; provided that any such electronic transmission
shall satisfy the requirements of Section 2.11(b) and, unless the Board of Directors otherwise provides by resolution, no such consent
by electronic transmission shall be deemed to have been delivered until such consent is reproduced in paper form and until such paper
form shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business or an officer
or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to
a Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of Directors is required by law, the record date for determining
stockholders entitled to consent to corporate action in writing or by electronic transmission without a meeting shall be at the close
of business on the day on which the Board of Directors adopts the resolution taking such prior action.
(c)
In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board 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, and which record date shall be not more than 60 days prior to such action. If no record
date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
Section
6.5 Registered Stockholders.
The
Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive
dividends and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by
the laws of Delaware.
ARTICLE
7
Other Securities of the Corporation
All
bonds, debentures and other corporate securities of the Corporation, other than stock certificates, may be signed by the Chairman of
the Board (if there be such an officer appointed), or the President or any Vice-President or such other person as may be authorized by
the Board of Directors and the corporate seal impressed thereon or a facsimile of such seal imprinted thereon and attested by the signature
of the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer; provided, however, that where any such bond,
debenture or other corporate security shall be authenticated by the manual signature of a trustee under an indenture pursuant to which
such bond, debenture or other corporate security shall be issued, the signature of the persons signing and attesting the corporate seal
on such bond, debenture or other corporate security may be the imprinted facsimile of the signatures of such persons. Interest coupons
appertaining to any such bond, debenture or other corporate security, authenticated by a trustee as aforesaid, shall be signed by the
Treasurer or an Assistant Treasurer of the Corporation, or such other person as may be authorized by the Board of Directors, or bear
imprinted thereon the facsimile signature of such person. In case any officer who shall have signed or attested any bond, debenture or
other corporate security, or whose facsimile signature shall appear thereon has ceased to be an officer of the Corporation before the
bond, debenture or other corporate security so signed or attested shall have been delivered, such bond, debenture or other corporate
security nevertheless may be adopted by the Corporation and issued and delivered as though the person who signed the same or whose facsimile
signature shall have been used thereon had not ceased to be such officer of the Corporation.
ARTICLE
8
Indemnification of Officers, Directors, Employees and Agents
Section
8.1 Right to Indemnification.
Each
person who was or is a party or is threatened to be made a party to or is involved (as a party, witness, or otherwise), in any threatened,
pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (hereinafter a “Proceeding”),
by reason of the fact that he, or a person of whom he is the legal representative, is or was a director, officer, employee, or agent
of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another Corporation
or of a partnership, joint venture, trust, or other enterprise, including service with respect to employee benefit plans, whether the
basis of the Proceeding is alleged action in an official capacity as a director, officer, employee, or agent or in any other capacity
while serving as a director, officer, employee, or agent (hereafter an “Agent”), shall be indemnified and held harmless by
the Corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended
or interpreted (but, in the case of any such amendment or interpretation, only to the extent that such amendment or interpretation permits
the Corporation to provide broader indemnification rights than were permitted prior thereto) against all expenses, liability, and loss
(including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement, and
any interest, assessments, or other charges imposed thereon, and any federal, state, local, or foreign taxes imposed on any Agent as
a result of the actual or deemed receipt of any payments under this Article) reasonably incurred or suffered by such person in connection
with investigating, defending, being a witness in, or participating in (including on appeal), or preparing for any of the foregoing in,
any Proceeding (hereinafter “Expenses”); provided, however, that except as to actions to enforce indemnification rights
pursuant to Section 9.3 of this Article, the Corporation shall indemnify any Agent seeking indemnification in connection with a Proceeding
(or part thereof) initiated by such person only if the Proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.
The right to indemnification conferred in this Article shall be a contract right.
Section
8.2 Authority to Advance Expenses.
Expenses
incurred by an officer or director (acting in his capacity as such) in defending a Proceeding shall be paid by the Corporation in advance
of the final disposition of such Proceeding, provided, however, that if required by the Delaware General Corporation Law, as amended,
such Expenses shall be advanced only upon delivery to the Corporation of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in
this Article or otherwise. Expenses incurred by other Agents of the Corporation (or by the directors or officers not acting in their
capacity as such, including service with respect to employee benefit plans) may be advanced upon such terms and conditions as the Board
of Directors deems appropriate. Any obligation to reimburse the Corporation for Expense advances shall be unsecured and no interest shall
be charged thereon.
Section
8.3 Right of Claimant to Bring Suit.
If
a claim under Section 8.1 or 8.2 of this Article is not paid in full by the Corporation within 120 days after a written claim has been
received by the Corporation, the claimant 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, the claimant shall be entitled to be paid also the expense (including attorneys’
fees) of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses
incurred in defending a Proceeding in advance of its final disposition where the required undertaking has been tendered to the Corporation)
that the claimant has not met the standards of conduct that make it permissible under the Delaware General Corporation Law for the Corporation
to indemnify the claimant for the amount claimed. The burden of proving such a defense shall be on the Corporation. Neither the failure
of the Corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior
to the commencement of such action that indemnification of the claimant is proper under the circumstances because he has met the applicable
standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel, or its stockholders) that the claimant had not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that claimant has not met the applicable standard of conduct.
Section
8.4 Provisions Nonexclusive.
The
rights conferred on any person by this Article shall not be exclusive of any other rights that such person may have or hereafter acquire
under any statute, provision of the Certificate of Incorporation, agreement, vote of stockholders or disinterested directors, or otherwise,
both as to action in an official capacity and as to action in another capacity while holding such office. To the extent that any provision
of the Certificate of Incorporation, agreement, or vote of the stockholders or disinterested directors is inconsistent with these Bylaws,
the provision, agreement, or vote shall take precedence.
Section
8.5 Authority to Insure.
The
Corporation may purchase and maintain insurance to protect itself and any Agent against any Expense, whether or not the Corporation would
have the power to indemnify the Agent against such Expense under applicable law or the provisions of this Article.
Section
8.6 Survival of Rights.
The
rights provided by this Article shall continue as to a person who has ceased to be an Agent and shall inure to the benefit of the heirs,
executors, and administrators of such a person.
Section
8.7 Settlement of Claims.
The
Corporation shall not be liable to indemnify any Agent under this Article (a) for any amounts paid in settlement of any action or claim
effected without the Corporation’s written consent, which consent shall not be unreasonably withheld; or (b) for any judicial award
if the Corporation was not given a reasonable and timely opportunity, at its expense, to participate in the defense of such action.
Section
8.8 Effect of Amendment.
Any
amendment, repeal, or modification of this Article shall not adversely affect any right or protection of any Agent existing at the time
of such amendment, repeal, or modification.
Section
8.9 Subrogation.
In
the event of payment under this Article, the Corporation shall be subrogated to the extent of such payment to all of the rights of recovery
of the Agent, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the corporation effectively to bring suit to enforce such rights.
Section
8.10 No Duplication of Payments.
The
Corporation shall not be liable under this Article to make any payment in connection with any claim made against the Agent to the extent
the Agent has otherwise actually received payment (under any insurance policy, agreement, vote, or otherwise) of the amounts otherwise
indemnifiable hereunder.
Section
8.11 Saving Clause.
If
this Article or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall
nevertheless indemnify each Agent to the fullest extent not prohibited by any applicable portion of this Article that shall not have
been invalidated, or by any other applicable law.
ARTICLE
9
Notices
Whenever,
under any provisions of these Bylaws, notice is required to be given to any stockholder, the same shall be given either (1) in writing,
timely and duly deposited in the United States Mail, postage prepaid, and addressed to his last known post office address as shown by
the stock record of the Corporation or its transfer agent, or (2) by a means of electronic transmission that satisfies the requirements
of Section 2.4(e) of these Bylaws, and has been consented to by the stockholder to whom the notice is given. Any notice required to be
given to any director may be given by either of the methods hereinabove stated, except that such notice other than one which is delivered
personally, shall be sent to such address or (in the case of electronic communication) such e-mail address, facsimile telephone number
or other form of electronic address as such director shall have filed in writing or by electronic communication with the Secretary of
the Corporation, or, in the absence of such filing, to the last known post office address of such director. If no address of a stockholder
or director be known, such notice may be sent to the principal executive office of the Corporation. An affidavit of mailing, executed
by a duly authorized and competent employee of the Corporation or its transfer agent appointed with respect to the class of stock affected,
specifying the name and address or the names and addresses of the stockholder or stockholders, director or directors, to whom any such
notice or notices was or were given, and the time and method of giving the same, shall be conclusive evidence of the statements therein
contained. All notices given by mail, as above provided, shall be deemed to have been given as at the time of mailing and all notices
given by means of electronic transmission shall be deemed to have been given as at the sending time recorded by the electronic transmission
equipment operator transmitting the same. It shall not be necessary that the same method of giving notice be employed in respect of all
directors, but one permissible method may be employed in respect of any one or more, and any other permissible method or methods may
be employed in respect of any other or others. The period or limitation of time within which any stockholder may exercise any option
or right, or enjoy any privilege or benefit, or be required to act, or within which any director may exercise any power or right, or
enjoy any privilege, pursuant to any notice sent him in the manner above provided, shall not be affected or extended in any manner by
the failure of such a stockholder or such director to receive such notice. Whenever any notice is required to be given under the provisions
of the statutes or of the Certificate of Incorporation, or of these Bylaws, a waiver thereof in writing signed by the person or persons
entitled to said notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated
therein, shall be deemed equivalent thereto. Whenever notice is required to be given, under any provision of law or of the Certificate
of Incorporation or Bylaws of the Corporation, to any person with whom communication is unlawful, the giving of such notice to such person
shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such
notice to such person. Any action or meeting which shall be taken or held without notice to any such person with whom communication is
unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation
is such as to require the filing of a certificate under any provision of the Delaware General Corporation Law, the certificate shall
state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons
with whom communication is unlawful.
ARTICLE
10
Amendments
Except
as otherwise provided in Section 8.8 above, these Bylaws may be repealed, altered or amended or new Bylaws adopted by written consent
of stockholders in the manner authorized by Section 2.11 of Article II, or at any meeting of the stockholders, either annual or special,
by the affirmative vote of a majority of the stock entitled to vote at such meeting, unless a larger vote is required by these Bylaws
or the Certificate of Incorporation. Except as otherwise provided in Section 8.8 above, the Board of Directors shall also have the authority
to repeal, alter or amend these Bylaws or adopt new Bylaws (including, without limitation, the amendment of any Bylaws setting forth
the number of directors who shall constitute the whole Board of Directors) by unanimous written consent or at any annual, regular, or
special meeting by the affirmative vote of a majority of the whole number of directors, subject to the power of the stockholders to change
or repeal such Bylaws and provided that the Board of Directors shall not make or alter any Bylaws fixing the qualifications, classifications,
or term of office of directors.
CERTIFICATE
OF SECRETARY
The
undersigned, Secretary of Harrow, Inc., a Delaware corporation, hereby certifies that the foregoing is a full, true and correct copy
of the Bylaws of said corporation, with all amendments to date of this Certificate.
WITNESS
the signature of the undersigned this 29th day of September, 2023.
|
/s/
Andrew R. Boll |
|
Andrew
R. Boll |
|
Secretary |
Exhibit
99.1
Harrow
Health, Inc. Changes Corporate Name to Harrow, Inc.
NASHVILLE,
Tenn., September 29, 2023 – Harrow (Nasdaq: HROW), a leading U.S. eyecare pharmaceutical company, announced that effective
today, it has changed its corporate name from “Harrow Health, Inc.” to “Harrow, Inc.” to align with the Company’s
current five-year strategic plan, which includes an exclusive focus on eyecare pharmaceuticals.
“Given
the growing recognition of the Harrow name within the ophthalmic community, along with the connection of the Harrow brand to what is
now one of the largest portfolios of ophthalmic pharmaceutical products in the U.S. market, we believed it was the right time to represent
our exclusive commitment to the ophthalmic market by shortening our corporate name to Harrow, Inc.,” said Mark L. Baum, Chief Executive
Officer of Harrow. “Our team wakes up each day dedicated to serving the U.S. ophthalmic community – to address their unmet
needs and provide the highest quality ophthalmic products available, helping them preserve the gift of sight for their patients. This
commitment has been part of Harrow’s DNA since our commercial founding in 2014, and it is one of the cornerstones of Harrow’s
mission to make ophthalmic pharmaceutical products accessible and affordable to millions of Americans each year.”
About
Harrow
Harrow,
Inc. (Nasdaq: HROW) is a leading eyecare pharmaceutical company engaged in the discovery, development, and commercialization of innovative
ophthalmic pharmaceutical products for the U.S. market. Harrow helps U.S. eyecare professionals preserve the gift of sight by making
its comprehensive portfolio of prescription and non-prescription pharmaceutical products accessible and affordable to millions of Americans
each year. For more information about Harrow, please visit harrow.com.
Contacts: |
|
|
|
|
|
Investors |
|
Media |
|
|
|
Jamie
Webb |
|
Deb
Holliday |
Director
of Communications and Investor Relations |
|
Holliday
Communications, Inc. |
jwebb@harrowinc.com |
|
deb@hollidaycommunications.net |
615-733-4737 |
|
412-877-4519 |
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