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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): May 6, 2024
StartEngine Crowdfunding, Inc.
(Exact Name of Registrant As Specified In Its
Charter)
000-56415
(Commission File Number)
Delaware |
|
46-5371570 |
(State or other jurisdiction
of
incorporation or organization) |
|
(I.R.S.
Employer
Identification No.) |
4100 West Alameda Avenue, 3rd Floor
Burbank, CA 91505
(Address of Principal Executive Offices)
Registrant’s telephone number, including area code: (800) 317-2200
Not applicable
(Former name, former address and former fiscal
year, 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 (see General
Instruction A.2. below):
¨ |
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)) |
Securities registered under Section 12(b) of
the Act:
None.
Securities registered under Section 12(g) of
the Act:
Common Stock, $0.00001 par value
(Title of Class)
Indicate by check mark whether the registrant
is an emerging growth company as defined in 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 x
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 2015 Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year.
On May 6, 2024, StartEngine Crowdfunding, Inc. (“StartEngine”)
filed with the Secretary of State of Delaware an amendment to its Certificate of Incorporation to increase the number of shares of Common
Stock, part value $0.00001 per share, that StartEngine is authorized to issue from 75,000,000 to 1,500,000,000 and to provide that as
of May 6, 2024, each share of Common Stock outstanding shall be automatically, and with no further action by the holder of such share,
split into twenty shares of Common Stock. The foregoing description is qualified in its entirety by reference to the full text of the
Seventh Amended and Restated Certificate of Incorporation, a copy of which is attached hereto as Exhibit 3.1 and is incorporated
herein by reference.
On May 6, 2024, the Company’s Bylaws for the purpose of
enhancing the company’s corporate governance and compliance with federal and state laws became effective. A copy of the Second Amended
and Restated Bylaws is attached hereto as Exhibit 3.2 and is incorporated herein by reference.
For details regarding these corporate actions, please see StartEngine’s
Information Statement, filed March 25, 2024.
Forward-Looking Statements
This
Current Report on Form 8-K contains forward-looking statements. All statements contained in this Quarterly Report on Form 8-K
other than statements of historical fact, including statements regarding our future results of operations and financial position, our
business strategy and plans, and our objectives for future operations, are forward-looking statements. The words "believe,"
"may," "will," "estimate," "continue," "anticipate," "intend," "expect,"
and similar expressions are intended to identify forward-looking statements. We have based these forward-looking statements largely on
our current expectations and projections about future events and trends that we believe may affect our financial condition, results of
operations, business strategy, short-term and long-term business operations and objectives, and financial needs. Moreover, we operate
in a very competitive and rapidly changing environment. New risks emerge from time to time. It is not possible for our management to predict
all risks, nor can we assess the impact of all factors on our business or the extent to which any factor, or combination of factors, may
cause actual results to differ materially from those contained in any forward-looking statements we may make. In light of these risks,
uncertainties and assumptions, the future events and trends discussed in this Current Report on Form 8-K may not occur and actual
results could differ materially and adversely from those anticipated or implied in the forward-looking statements.
We
undertake no obligation to revise or publicly release the results of any revision to these forward-looking statements, except as required
by law. Given these risks and uncertainties, readers are cautioned not to place undue reliance on such forward-looking statements.
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 thereunto duly authorized.
|
|
STARTENGINE CROWDFUNDING, INC. |
|
|
(Registrant) |
|
|
|
Date: May 10, 2024 |
By: |
/s/ Howard Marks |
|
|
Howard Marks |
|
|
Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer and Director |
Exhibit 3.1
State of
Delaware Secretary of State Division of Corporations Delivered 11:50 AM 05/06/2024
FILED 11:50 AM 05/06/2024
SR 20241873153 - File Number 5501534 |
SEVENTH AMENDED AND RESTATED |
|
CERTIFICATE
OF INCORPORATION
OF STARTENGINE CROWDFUNDING, INC.
StartEngine Crowdfunding, Inc.,
a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:
1. The
name of the corporation is StartEngine Crowdfunding, Inc.
2. The
date of filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware was March 19, 2014.
The corporation was originally incorporated under the name of StartEngine Crowdsourcing, Inc.
3. The
board of directors of the corporation duly adopted a resolution declaring advisable the Seventh Amended and Restated Certificate of Incorporation
of the corporation and submitting the same to the stockholders of the corporation entitled to vote thereon for approval.
4. Thereafter,
in accordance with §228 of the Delaware General Corporation Law and the bylaws of the Company, the stockholders of the corporation
constituting the holders of the outstanding Common Stock and of the outstanding Preferred Stock voting together as a class, in each case
having not less than the minimum number of votes that would be necessary to authorize or take the actions set forth herein at a meeting
of such stockholders at which all shares entitled to vote thereon were present and voted, executed a written consent approving the Seventh
Amended and Restated Certificate of Incorporation.
5. The
Seventh Amended and Restated Certificate of Incorporation, set forth below, was duly adopted in accordance with the provisions of §242
and §245 of the Delaware General Corporation Law.
ARTICLE I
The
name of the corporation (hereinafter, the “Corporation”) is StartEngine Crowdfunding, Inc.
ARTICLE II
The address of the
registered office of the Corporation in the State of Delaware is 1209 Orange Street, Country of New Castle, Wilmington, Delaware 19801
and the name of the registered agent at that address is The Corporation Trust Company.
ARTICLE IlI
The
nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may
be organized under the Delaware General Corporation Law.
ARTICLE IV
The
Corporation is authorized to issue two classes of stock, designated “Common Stock”
and “Preferred Stock,” each with a par value of $0.00001 per share. The total number of shares of Common Stock
that the Corporation is authorized to issue is 1,500,000,000 shares. The total number of shares of Preferred Stock that the Corporation
is authorized to issue is 519,000,000 shares.
The
Preferred Stock may be issued from time to time in one or more series. The first series of Preferred Stock shall be comprised of 213,000,000
shares and shall be designated “Series Seed Preferred Stock.” The second
series of Preferred Stock shall be comprised of 207,000,000 shares and shall be designated “Series A Preferred Stock.”
The third series of Preferred Stock shall be comprised of 99,000,000 shares and shall be designated “Series T Preferred
Stock.”
Upon
the filing with the Secretary of State of the State of Delaware (the “Effective Time”) of this Seventh Amended and Restated
Certificate of Incorporation of the Corporation a 20-for-1 forward stock split shall occur whereby (i) each share of Common Stock
either issued and outstanding or held by the Corporation in treasury stock immediately prior to the Effective Time shall, automatically
and without any action on the part of the respective holders thereof, be split and converted into twenty (20) shares of Common Stock,
(ii) each share Series Seed Preferred Stock either issued and outstanding or held by the Corporation in treasury stock immediately
prior to the Effective Time shall, automatically and without any action on the part of the respective holders thereof, be split and converted
into twenty (20) shares of Series Seed Preferred Stock, (iii) each share Series A Preferred Stock either issued and outstanding
or held by the Corporation in treasury stock immediately prior to the Effective Time shall, automatically and without any action on the
part of the respective holders thereof, be split and converted into twenty (20) shares of Series A Preferred Stock, (iv) and
each share Series T Preferred Stock either issued and outstanding or held by the Corporation in treasury stock immediately prior
to the Effective Time shall, automatically and without any action on the part of the respective holders thereof, be split and converted
into twenty (20) shares of Series T Preferred Stock.
The
relative rights, preferences, privileges and restrictions granted to or imposed upon the Series Seed, Series A Preferred Stock
and Series T Preferred Stock are as follows:
1. Dividends.
No dividends shall be paid on any share of Common Stock unless a dividend is paid with respect to all outstanding shares of Preferred
Stock in an amount for each such share of Preferred Stock equal to or greater than the aggregate amount of such dividends for all shares
of Common Stock into which each such share of Preferred Stock could then be converted. The right to dividends on shares of Preferred
Stock shall not be cumulative, and no right shall accrue to holders of Preferred Stock by reason of the fact that dividends on said shares
are not declared in any period, nor shall any undeclared or unpaid dividend bear or accrue interest.
2. Liquidation
Preference. In the event of the liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary, the assets
and funds of the Corporation available for distribution to stockholders shall be distributed as follows:
(a) First,
the holders of shares of Series A Preferred Stock and the holders of shares of Series T Preferred Stock then outstanding shall
be entitled to receive, out of the assets of the Corporation available for distribution to its stockholders, before any payment shall
be made in respect of the Corporation’s Series Seed Preferred Stock and Common Stock, an amount equal to the Original Series A
Price (as defined below) for shares of Series A Preferred Stock and the Original Series T Price (as defined below) for shares
of Series T Preferred Stock, plus all declared and unpaid dividends thereon to the date fixed for such distribution. If, upon the
occurrence of such event, the assets of the Corporation legally available for distribution are insufficient to permit the payment to
the holders of Series A Preferred Stock and the holders of Series T Preferred Stock of the full preferential amount, then the
entire assets available for distribution to stockholders shall be distributed to the holders of the Series A Preferred Stock and
the holders of the Series T Preferred Stock ratably in proportion to the full preferential amounts which they would be entitled
to receive pursuant to the preceding sentence of this Section 2(a). The “Original Series A Price” shall
mean $0.02864 per share of Series A Preferred Stock, as adjusted for any subsequent stock splits, reverse stock splits, stock dividends,
and similar recapitalization events ( each a “Recapitalization Event”) and the “Original Series T Price”
shall mean $0.14667 per share of Series T Preferred Stock, as adjusted for any subsequent Recapitalization Events.
(b) After
the full preferential amounts due the holders of Series A Preferred Stock and the holders of shares of Series T Preferred Stock
pursuant to Section 2(a) have been paid or set aside, the holders of shares of Series Seed Preferred Stock then
outstanding shall be entitled to receive, out of the assets of the Corporation available for distribution to its stockholders, before
any payment shall be made in respect of the Corporation’s Common Stock, an amount equal to $0.00833 per share of Series Seed
Preferred Stock, as adjusted for any subsequent Recapitalization Events (the “Original Series Seed Price”), plus
all declared and unpaid dividends thereon to the date fixed for such distribution. If, upon the occurrence of such event, the assets
of the Corporation legally available for distribution are insufficient to permit the payment to the holders of Series Seed Preferred
Stock of the full preferential amount, then the entire assets available for distribution to stockholders shall be distributed to the
holders of the Series Seed Preferred Stock ratably in proportion to the full preferential amounts which they would be entitled to
receive pursuant to the preceding sentence of this Section 2(b).
(c) After
the full preferential amounts due the holders of Preferred Stock pursuant to Sections 2(a) and 2(b) have
been paid or set aside, any remaining assets of the Corporation legally available for distribution to stockholders shall be distributed
to the holders of Common Stock and Preferred Stock ratably in proportion to the number of shares of Common Stock then held, or issuable
upon conversion of the shares of Preferred Stock then held, by each holder.
(d) (i) A
merger or consolidation of the Corporation into or with another entity after which the stockholders of the Corporation immediately prior
to such transaction do not own, immediately following the consummation of the transaction by virtue of their shares in the Corporation
or securities received in exchange for such shares in connection with the transaction, a majority of the voting power of the surviving
entity in proportions substantially identical to those that existed immediately prior to such transaction and with substantially the
same rights, preferences, privileges and restrictions as the shares they held immediately prior to the transaction, (ii) the
sale, transfer or other disposition (but not including a transfer or disposition by pledge or mortgage to a bona fide lender) of all
or substantially all of the assets of the Corporation ( other than to a wholly-owned subsidiary), or (iii) the sale or transfer
by the Corporation or its stockholders of more than 50% of the voting power of the Corporation in a transaction or series of related
transactions other than in a transaction or series of transactions effected by the Corporation primarily for financing purposes, shall
be deemed to be a liquidation of the Corporation as that term is used in this Section 2(d) (each a “Deemed
Liquidation”). A Deemed Liquidation may be waived upon the vote of holders of at least a majority of the voting power of the
Preferred Stock, voting together as a single class.
In
the event of a Deemed Liquidation pursuant to Section 2(d)(i), if any portion of the consideration payable to the stockholders
of the Corporation is payable only upon satisfaction of contingencies (the “Additional
Consideration”), the definitive agreement providing therefor shall provide that (a) the portion of such consideration
that is not Additional Consideration (such portion, the “Initial Consideration”) shall be allocated among the holders
of capital stock of the Corporation in accordance with Sections 2(a) and 2(b)
as if the Initial Consideration were the only consideration payable in connection with such Deemed Liquidation; and (b) any
Additional Consideration which becomes payable to the stockholders of the Corporation upon satisfaction of such contingencies shall be
allocated among the holders of capital stock of the Corporation in accordance with Sections 2(a) and 2(b)
after taking into account the previous payment of the Initial Consideration as part of the same transaction. For the purposes
hereof, consideration placed into escrow or retained as holdback to be available for satisfaction of indemnification or similar obligations
in connection with such Deemed Liquidation shall be deemed to be Additional Consideration.
(e) In
the event of any liquidation of the Corporation involving the distribution of assets other than cash to the stockholders of the Corporation,
the value of the assets to be distributed shall be determined as follows:
(i) In
the case of securities that are not subject to investment letter or other similar restrictions on free tradability,
(A) if
traded on a national securities exchange, the value shall be deemed to be the average of the closing prices of the securities over the
10 day period ending three days prior to the closing;
(B) if
actively traded over-the-counter (including on online platforms or alternative trading systems), the value shall be deemed to be the
average of (i) the average of the last bid and ask prices or (ii) the closing sale prices (whichever is applicable) over the
30 day period ending three days prior to the closing; and
(C) if
there is no active public market, the value shall be the fair market value thereof, as mutually determined by the Corporation and the
holders of at least a majority of the voting power of all then outstanding shares of Preferred Stock.
(ii) In
the case of securities subject to investment letter or other restrictions on free marketability ( other than restrictions arising solely
by virtue of a stockholder’s status as an affiliate or former affiliate),
the value shall be based on an appropriate discount from the market value determined as above in Section 2(e)(i) to
reflect the approximate fair market value thereof, as mutually determined by the Corporation and the holders of at least a majority of
the voting power of all then outstanding shares of Preferred Stock.
(iii) In
the case of any other property, the value shall be equal to the property’s fair market value, as mutually determined by the Corporation
and the holders of at least a majority of the voting power of all then outstanding shares of Preferred Stock.
3. Conversion.
The holders of the Preferred Stock shall have conversion rights as follows:
(a) Right
to Convert. Each share of Preferred Stock shall be convertible, at the option of the holder thereof, at any time after the date of
issuance of such share, at the office of the Corporation or any transfer agent for the Preferred Stock, into a number of fully paid and
nonassessable shares of Common Stock equal to the Original Series Seed Price, in the case of the Series Seed Preferred Stock,
the Original Series A Price, in the case of the Series A Preferred Stock, or the Original Series T Price, in the case
of the Series T Preferred Stock, divided by the Conversion Price for such series of Preferred Stock in effect at the time of conversion.
The “Conversion Prices” for the Series Seed Preferred Stock, Series A Preferred Stock and Series T
Preferred Stock is $0.00833, $0.02864, and $0.14667, respectively, and shall be subject to further adjustment as provided in Section 3(d).
(b) Automatic
Conversion. Each share of Preferred Stock shall automatically be converted into fully paid and nonassessable shares of Common Stock,
at the then effective Conversion Price, upon (i) the vote or written consent of at least a majority of the voting power represented
by the then outstanding shares of Preferred Stock or (ii) the closing of a firm-commitment underwritten public offering pursuant
to an effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock at an
offering price of not less than the Minimum Share Price, as adjusted for any subsequent Recapitalization Event, with aggregate gross
proceeds to the Corporation (prior to underwriters’ commissions and expenses) of not less than $15,000,000. The “Minimum
Share Price” is $0.14317 for shares of Series Seed Preferred Stock and shares of Series A Preferred Stock and $0.14667
for shares of Series T Preferred Stock.
(c) Mechanics
of Conversion. Before any holder of Preferred Stock shall be entitled to convert the same into shares of Common Stock, such holder
shall give written notice to the Corporation at the headquarters of the Corporation that the holder elects to convert the same and shall
state therein the name or names in which the shares of Common Stock are to be issued and, if such shares are certificated, shall surrender
the certificate or certificates therefor, duly endorsed, at the headquarters of the Corporation or of any transfer agent for the Corporation
(except that no such written notice of election to convert shall be necessary in the event of an automatic conversion pursuant to Section 3(b)).
The Corporation shall, as soon as practicable thereafter, either (i) instruct the transfer agent to note the conversion of the shares
on the stock ledger of the Corporation or (ii) issue and deliver at such office to such holder of Preferred Stock, or to the nominee
or nominees of such holder, a certificate or certificates for the number of shares of
Common Stock to which he shall be entitled as aforesaid. Such conversion shall be deemed to have been made immediately prior to the close
of business on the date of such surrender of the shares of Preferred Stock to be converted ( except that, in the case of an automatic
conversion upon an initial public offering pursuant to Section 3(b), such conversion shall be deemed to have been made immediately
prior to the closing of the offering) and the person or persons entitled to receive the shares of Common Stock issuable upon such conversion
shall be treated for all purposes as the record holder or holders of such shares of Common Stock on such date. Upon the occurrence of
either of the events specified in Section 3(b), the outstanding shares of Preferred Stock shall be converted
automatically without any further action by the holders of such shares and whether or not the certificates, if applicable, representing
such shares are surrendered to the Corporation or its transfer agent; provided, however, that the Corporation shall not be obligated
to issue certificates evidencing the shares of Common Stock issuable upon such conversion, if the shares were previously in certificate
form, unless either the certificates evidencing such shares of Preferred Stock are delivered to the Corporation or its transfer agent
as provided above, or the holder notifies the Corporation or its transfer agent that such certificates have been lost, stolen or destroyed
and executes an agreement satisfactory to the Corporation to indemnify the Corporation against any loss incurred by it in connection
with such certificates.
(d) Adjustments
to Conversion Price for Dilutive Issuances.
(i) Special
Definitions. For purposes of this Section 3(d), the following definitions shall apply:
(A) “Original
Issue Date” shall mean, with respect to any series of Preferred Stock, the date on which shares of such series are first issued
by the Corporation.
(B) “Additional
Shares of Common Stock” shall mean all shares of Common Stock issued (or, pursuant to Section 3(d)(ii), deemed
to be issued) by the Corporation after the Original Issue Date, other than ( collectively, “Excluded Securities”):
(1) shares
of Common Stock issued upon conversion of Preferred Stock;
(2) shares
issued or issuable to officers, directors or employees of, or consultants to, the Corporation pursuant to any stock option plan or agreement
or other stock incentive program or agreement approved by the Board of Directors;
(3) issued
or issuable to landlords, equipment lessors, lenders or other financial institutions in a commercial transaction or arrangement approved
by the Board of Directors;
(4) shares
issuable upon exercise or conversion of any warrants that are outstanding as of the date of this Second Amended and Restated Certificate
of Incorporation; or
(5) shares
for which an adjustment is made pursuant to Section 3(d)(v).
(C) “Options”
shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire either Common Stock or Convertible Securities
(as defined below).
(D) “Convertible
Securities” shall mean any evidences of indebtedness, shares of Preferred Stock or other securities convertible into or exchangeable
for Common Stock.
(ii) Deemed
Issue of Additional Shares of Common Stock. In the event the Corporation at any time or from time to time after the Original Issue
Date shall issue any Options or Convertible Securities or shall fix a record date for the determination of holders of any class of securities
entitled to receive any such Options or Convertible Securities, then the following provisions shall apply:
(A) The
maximum number of shares (as set forth in the instrument relating thereto without regard to any provisions contained therein for a subsequent
adjustment of such number) of Common Stock issuable upon the exercise of such Options or upon the conversion or exchange of such Convertible
Securities shall be deemed to be Additional Shares of Common Stock issued as of the time of the issuance of such Option or Convertible
Security or, in case such a record date shall have been fixed, as of the close of business on such record date.
(B) Except
as provided in Sections 3(d)(ii)(C) and 3(d)(ii)(D), no further adjustment in the Conversion Price shall be made upon the
subsequent issue of Convertible Securities or shares of Common Stock upon the exercise of such Options or conversion or exchange of such
Convertible Securities.
(C) If
such Options or Convertible Securities by their terms provide, with the passage of time or otherwise, for any change in the consideration
payable to the Corporation or the number of shares of Common Stock issuable upon the exercise, conversion or exchange thereof (other
than a change resulting from the antidilution provisions of such Options or Convertible Securities), the Conversion Price computed upon
the original issue thereof (or upon the occurrence of a record date with respect thereto) and any subsequent adjustments based thereon
shall, upon any such increase or decrease becoming effective, be recomputed to reflect such increase or decrease insofar as it affects
such Options or the rights of conversion or exchange under such Convertible Securities; provided, however, that such recomputed Conversion
Price shall not exceed the Conversion Price that would have been in effect had the original issuance of Options or Convertible Securities
not been deemed to constitute an issuance of Additional Shares of Common Stock.
(D) Upon
the expiration of any such Options or Convertible Securities, the Conversion Price, to the extent in any way affected by or computed
using such Options or Convertible Securities, shall be recomputed to reflect the issuance of only the number of shares of Common Stock
actually issued upon the exercise of such Options or Convertible Securities.
(iii) Adjustment
of Conversion Price for Dilutive Issuances. In the event the Corporation shall issue Additional Shares of Common Stock (including
Additional Shares of Common Stock deemed to be issued pursuant to Section 3(d)(ii))
after the Original Issue Date of any series of Preferred Stock without consideration or for a consideration per share less than the
Conversion Price for such series in effect immediately prior to such issuance, then and in each such event the Conversion Price for such
series shall be reduced to a price (rounded to the nearest one thousandth of one cent) equal to such Conversion Price multiplied by a
fraction:
(x) the
numerator of which is equal to the number of shares of Common Stock outstanding or deemed to be outstanding immediately prior to such
issuance plus the number of shares of Common Stock which the aggregate consideration received by the Corporation for the total number
of Additional Shares of Common Stock so issued would purchase at the Conversion Price in effect immediately prior to such issuance; and
(y) the
denominator of which is equal to the number of shares of Common Stock outstanding or deemed to be outstanding immediately prior to such
issuance plus the number of Additional Shares of Common Stock so issued.
For
the purposes of this Section 3(d)(iii), the number of shares of Common Stock deemed
to be outstanding shall be deemed to include the Common Stock issuable upon full exercise and conversion of all then outstanding Options
and Convertible Securities, not including shares excluded from the definition of “Additional Shares of Common Stock” pursuant
to Section 3(d)(i)(B)(2). Any adjustment to the Conversion Price of a particular series of Preferred Stock made pursuant
to this Section 3(d)(iii) may be waived upon the vote of holders of at least a majority of the voting power of such
series of Preferred Stock, voting as a single class.
(iv) Determination
of Consideration. For purposes of this Section 3(d),
the consideration received by the Corporation for the issue of any Additional Shares of Common Stock shall be computed as follows:
(A) Cash
and Property. Such consideration shall:
(1) insofar
as it consists of cash, be computed at the aggregate amount of cash received by the Corporation before deducting any reasonable discounts,
commissions or other expenses allowed, paid or incurred by the Corporation for any underwriting or otherwise in connection with the issuance
and sale thereof;
(2) insofar
as it consists of property other than cash, be computed at the fair value thereof at the time of such issue, as determined in good faith
by the Board of Directors; and
(3) in
the event Additional Shares of Common Stock are issued together with other securities or other assets of the Corporation for consideration
that covers both, be the proportion of such consideration so received, computed as provided in clauses (1) and (2) above, as
determined in good faith by the Board of Directors.
(B) Options
and Convertible Securities. The consideration per share received by the Corporation for Additional Shares of Common Stock deemed
to have been issued pursuant to Section 3(d) relating to Options and Convertible Securities shall be equal to:
(x) the
total amount, if any, received or receivable by the Corporation as consideration for the issuance of such Options or Convertible Securities,
plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any
provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options
or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such
Options for Convertible Securities and the conversion or exchange of such Convertible Securities, divided by
(y) the
maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained
therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such
Convertible Securities.
(v) Other
Adjustments to Conversion Price.
(A) Subdivisions,
Combinations or Consolidations of Common Stock. In the event the outstanding shares of Common Stock shall be subdivided, combined
or consolidated, by stock split, reverse stock split or similar event, into a greater or lesser number of shares of Common Stock after
the Original Issue Date of a series of Preferred Stock, the Conversion Price for such series in effect immediately prior to such subdivision,
combination or consolidation shall, concurrently with the effectiveness of such subdivision, combination or consolidation, be proportionately
adjusted.
(B) Common
Stock Dividends and Distributions. If, after the Original Issue Date of a series of Preferred Stock, the Corporation at any time
or from time to time issues, or fixes a record date for determination of holders of Common Stock entitled to receive, a dividend or other
distribution payable in additional shares of Common Stock, then in each such event, as of the time of such issuance or, in the event
such record date is fixed, as of the close of business on such record date, the Conversion Price for such series that is then in effect
shall be decreased by multiplying the Conversion Price then in effect by a fraction, (x) the numerator of which is the number of
shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record
date, and (y) the denominator of which is the number of shares of Common Stock issued and outstanding immediately prior to the time
of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend
or distribution; provided, however, that if such record date is fixed and such dividend or distribution is not paid in full on the date
fixed therefor, the Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter the
Conversion Price shall be adjusted pursuant to this Section 3(d)(v)(B) to reflect the actual payment of such dividend or
distribution.
(C) Other
Distributions. In case the Corporation shall distribute to holders of its Common Stock shares of its capital stock ( other than shares
of Common Stock and other than as otherwise subject to adjustment pursuant to
this Section 3(d)), stock or other securities of other persons, evidences of indebtedness issued by the Corporation
or other persons, assets (excluding cash dividends) or options or rights (excluding options to purchase and rights to subscribe for Common
Stock or other securities of the Corporation convertible into or exchangeable for Common Stock), or shall fix a record date for determination
of holders of Common Stock entitled to receive such a distribution, then, in each such case, provision shall be made so that the holders
of Preferred Stock shall be entitled to receive, upon conversion thereof, in addition to the number of shares of Common Stock receivable
thereupon, the amount of securities of the Corporation that they would have received had their Preferred Stock been converted into Common
Stock on the date of such event ( or on the record date with respect thereto, if such record date is fixed) and had they thereafter,
during the period from the date of such event to and including the date of conversion, retained such securities receivable by them as
aforesaid during such period, subject to all other adjustments called for during such period under this Section 3 with respect
to the rights of the holders of the Preferred Stock.
(D) Recapitalizations
and Reorganizations. In the case of any capital recapitalization or reorganization (other than a subdivision, combination or other
recapitalization provided for elsewhere in this Section 3 or a merger or sale of assets provided for in Section 2),
or the fixing of any record date for determination of holders of Common Stock affected by such recapitalization or reorganization, provision
shall be made so that the holders of Preferred Stock shall be entitled to receive, upon conversion thereof, the type and number of shares
of stock or other securities or property of the Corporation or otherwise that they would have received had their Preferred Stock been
converted into Common Stock on the date of such event ( or on the record date with respect thereto, if such record date is fixed) and
had they thereafter, during the period from the date of such event to and including the date of conversion, retained such securities
receivable by them as aforesaid during such period, subject to all other adjustments called for during such period under this Section 3
with respect to the rights of the holders of the Preferred Stock. In any such case, appropriate adjustment shall be made in the application
of the provisions of this Section 3 to the end that the provisions of this Section 3 shall be applicable after
the recapitalization or reorganization to the greatest extent practicable.
(e) Certificate
as to Adjustments. Upon the occurrence of each adjustment or readjustment of the Conversion Price for a series of Preferred Stock
pursuant to this Section 3, the Corporation at its expense shall promptly compute such adjustment or readjustment in accordance
with the terms hereof and furnish to each holder of a share of such series of Preferred Stock a certificate setting forth such adjustment
or readjustment and showing in detail the facts upon which such adjustment or readjustment is based including the consideration received
for any Additional Shares of Common Stock issued. The Corporation shall, upon the written request at any time of any holder of Preferred
Stock, furnish or cause to be furnished to such holder a like certificate setting forth (i) such adjustments and readjustments,
(ii) the Conversion Price at the time in effect for the series of Preferred Stock held by such holder and (iii) the number
of shares of Common Stock and the type and amount, if any, of other property which at the time would be received upon the conversion
of a share of such series of Preferred Stock.
(f) Fractional
Shares. No fractional shares of Common Stock shall be issued upon conversion of shares of Preferred Stock. In lieu of any fractional
shares to which the holder of Preferred Stock would otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied
by the fair market value of one share of Common Stock as determined by the Board of Directors of the Corporation. The number of whole
shares issuable to each holder of a series of Preferred Stock upon such conversion shall be determined on the basis of the number of
shares of Common Stock issuable upon conversion of the total number of shares of such series of Preferred Stock being converted into
Common Stock by such holder at that time.
(g) Notices
of Record Date. In the event (i) the Corporation shall take a record of the holders of its capital stock for the purpose of
entitling them to receive a dividend or other distribution (other than a cash dividend) or to subscribe for or purchase any shares of
stock of any class or to receive any other rights, (ii) of any capital reorganization, reclassification or recapitalization (other
than a subdivision or combination of its outstanding shares of Common Stock), or (iii) of the voluntary or involuntary dissolution,
liquidation or winding up of the Corporation or any Deemed Liquidation, then, and in any such case, the Corporation shall cause to be
mailed to each holder of record of the Preferred Stock at the address of record of such stockholder as set forth on the Corporation’s
books, at least 20 days prior to the earliest date hereinafter specified, a notice stating the material terms of the proposed transaction
and the date on which (x) a record is to be taken for the purpose of such dividend, distribution or rights or (y) such reorganization,
reclassification, recapitalization, dissolution, liquidation or winding up is to take place and the date, if any is to be fixed, as of
which holders of capital stock of record shall be entitled to exchange their shares of capital stock for securities or other property
deliverable upon such reorganization, reclassification, recapitalization, dissolution, liquidation or winding up; provided, however,
that such notice period may be shortened upon the written consent of holders of Preferred Stock that are entitled to such notice rights
or similar notice rights and that represent at least a majority of the voting power of all then outstanding shares of such Preferred
Stock. If any material change in the facts set forth in the written notice shall occur, the Corporation shall promptly give written notice
of such material change to each holder of shares of Preferred Stock.
(h) No
Impairment. Without obtaining such consent of the holders of Preferred Stock as may be required under Section 6, the
Corporation will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms to be observed or performed hereunder by the Corporation, but will at all times in good faith assist in the carrying
out of all the provisions of this Section 3 and in the taking of all such action as may be necessary or appropriate in order
to protect the conversion rights of the holders of Preferred Stock against impairment.
(i) Reservation
of Stock Issuable Upon Conversion. The Corporation shall at all times reserve and keep available out of its authorized but unissued
shares of Common Stock, solely for the purpose of effecting the conversion of the Preferred Stock, such number of its shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Preferred Stock; and if at any time
the number of authorized but unissued shares of Common Stock shall not be sufficient to effect the conversion of all then outstanding
shares of Preferred Stock, the Corporation will take such corporate action as may, in the opinion of its counsel, be necessary to increase
its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for such purpose.
4. Redeemed
or Otherwise Acquired Shares. Any shares of Preferred Stock that are redeemed or otherwise acquired by the Corporation or any of
its subsidiaries shall be automatically and immediately cancelled and retired and shall not be reissued, sold or transferred. Neither
the Corporation nor any of its subsidiaries may exercise any voting or other rights granted to the holders of Preferred Stock following
redemption.
5. Voting
Rights.
(a) General.
Each holder of Preferred Stock shall be entitled to a number of votes equal to the number of whole shares of Common Stock into which
such holder’s shares of Preferred Stock could then be converted and, except as otherwise required by law or as set forth herein,
shall have voting rights and powers equal to the voting rights and powers of the Common Stock. Each holder of Preferred Stock shall be
entitled to notice of any stockholders’ meeting in accordance with the Bylaws of the Corporation and shall be entitled to vote
with the holders of Common Stock with respect to any matter upon which holders of Common Stock have the right to vote, except as otherwise
provided herein or those matters required by law to be submitted to a class vote.
6. Protective
Provisions. So long as any shares of Preferred Stock are outstanding, the Corporation shall not, without first obtaining the affirmative
vote or written consent of the holders of a majority of the voting power represented by the then outstanding shares of Preferred Stock,
voting together as a class:
(a) enter
into transaction or series of related transactions involving a merger or consolidation with another entity, or a sale, conveyance or
disposal of all or substantially all of its assets, unless the stockholders of the Corporation immediately prior to such transaction
own, immediately following the consummation of the transaction by virtue of their shares in the Corporation or securities received in
exchange for such shares in connection with the transaction, a majority of the voting power of the surviving or purchasing entity in
proportions substantially similar to those that existed immediately prior to such transaction and with substantially the same rights,
preferences, privileges and restrictions as the shares they held immediately prior to the transaction;
(b) modify
the rights, preferences, privileges or restrictions of the Preferred Stock so as to adversely affect the Preferred Stock;
(c) increase
the total number of authorized shares of Preferred Stock;
(d) authorize
or issue, or obligate itself to issue, any other equity security having a preference over, or on a parity with, the Preferred Stock with
respect to dividends, liquidation, redemption or voting;
(e) redeem,
purchase or otherwise acquire any shares of Common Stock or Preferred Stock other than in connection with (i) the repurchase of
Common Stock at the original purchase price from employees, officers, directors, consultants or other service providers pursuant to agreements
providing for such repurchase upon termination of employment, (ii) the exercise of a contractual right of first refusal entitling
the Corporation to purchase such shares upon substantially the same terms offered by a third party, provided that the purchase is approved
by the Board of Directors, or (iii) the redemption of Series Seed Preferred Stock pursuant to Section 8.1 of the
Corporation’s Series A Preferred Stock Purchase Agreement;
(f) declare
or pay any dividend on the Common Stock, other than a dividend payable solely in shares of Common Stock; or
(g) amend
the Certificate of Incorporation or Bylaws of the Corporation.
7. Waiver.
Any of the rights, powers, privileges and other terms of the Preferred Stock set forth herein may be waived on behalf of all holders
of Preferred Stock by the affirmative written consent or vote of the holders of a majority of the voting power represented by the then
outstanding shares of Preferred Stock, voting together as a class.
8. Notices.
Except as otherwise provided herein, any notice required or permitted by the provisions of this Article IV to be given
to a holder of shares of Preferred Stock shall be mailed, postage prepaid, to the post office address last shown on the records of the
Corporation, or given by electronic communication in compliance with the provisions of the Delaware General Corporation Law, and shall
be deemed sent upon such mailing or electronic transmission.
9. Status
of Converted Stock. In the event any shares of Preferred Stock shall be converted pursuant to Section 3, or otherwise
acquired by the Corporation, the shares so converted shall be canceled and shall not be issuable by the Corporation, and the Certificate
of Incorporation of the Corporation shall be appropriately amended to
effect the corresponding reduction in the Corporation’s authorized capital stock.
10. Residual
Rights. All rights accruing to the outstanding shares of the Corporation not expressly provided for to the contrary herein shall
be vested in the Common Stock.
11. Certain
Repurchases of Stock. For purposes of Section 500 of the California Corporations Code (to the extent applicable), in connection
with any repurchase of shares of Common Stock permitted under this Seventh Amended and Restated Certificate of Incorporation
from employees, officers, directors or consultants of the Corporation in connection with a termination of employment or services pursuant
to agreements or arrangements approved by the Board (in addition to any other consent required under this Seventh Amended and Restated
Certificate of Incorporation), such repurchase may be made without regard to any “preferential dividends arrears amount”
or “preferential rights amount” (as those terms are defined in Section 500 of the California Corporations Code). Accordingly,
for purposes of making any calculation under California Corporations Code Section 500 in connection with such repurchase, the amount
of any “preferential dividends arrears amount” or “preferential rights amount” (as those terms are defined therein)
shall be deemed to be zero.
ARTICLE V
The
business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers
and authority expressly conferred upon them by statute or by this Seventh Amended and Restated Certificate of Incorporation or the Bylaws
of the Corporation, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised
or done by the Corporation. Election of directors need not be by written ballot, unless the Bylaws so provide.
ARTICLE VI
The
Board of Directors is authorized to make, adopt, amend, alter or repeal the Bylaws of the Corporation. The stockholders shall also have
power to make, adopt, amend, alter or repeal the Bylaws of the Corporation.
ARTICLE VII
To
the fullest extent permitted by the Delaware General Corporation Law, as the same exists or may hereafter be amended, a director of the
Corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as
a director. The Corporation is authorized to provide indemnification of agents (as defined in Section 317 of the California Corporations
Code) through bylaw provisions, agreements with agents, vote of stockholders or disinterested directors, or otherwise, in excess of the
indemnification otherwise permitted by Section 317 of the California Corporations Code, subject only to the applicable limits on
indemnification set forth in Sections 204 and 317 of the California Corporations Code with respect to actions for breach of duty to the
Corporation or its stockholders, to the extent the Corporation is subject to those provisions pursuant to Section 2115 of the California
Corporations Code. Any repeal or modification of the foregoing provisions of this Article VII
by the stockholders of the corporation shall not adversely affect any right or protection of a director of the corporation existing
at the time of, or increase the liability of any director of the corporation with respect to any acts or omissions occurring prior to,
such repeal or modification.
ARTICLE VIII
The
Corporation reserves the right to amend or repeal any of the provisions contained in this Seventh Amended and Restated Certificate of
Incorporation in any manner now or hereafter permitted by law, and the rights of the stockholders of the Corporation are granted subject
to this reservation.
ARTICLE IX
Pursuant
to Section 122(17) of the Delaware General Corporation Law, the Corporation hereby renounces any interest or expectancy of the Corporation
in, or in being offered an opportunity to participate in, any and all business opportunities that are presented to any of the holders
of Preferred Stock or their respective affiliates (collectively, the “Preferred Investor
Parties”) at any time that such holders hold any securities of the Corporation. Without limiting the foregoing renunciation,
the Corporation acknowledges that the Preferred Investor Parties are in the business of making investments in, and have investments in,
other businesses similar to and that may compete with the Corporation’s businesses (“Competing Businesses”), and
agrees that the Preferred Investor Parties shall have the unfettered right to make additional investments in or have relationships with
other Competing Businesses independent of their investments in the Corporation. By virtue of a Preferred Investor Party holding securities
of the Corporation or by having persons designated by or affiliated with such
Preferred Investor Party serving on or observing at meetings of the Corporation’s Board of Directors or otherwise, no Preferred
Investor Party shall have any obligation to the Corporation, any of its subsidiaries or any other holder of securities of the Corporation
to refrain from competing with the Corporation and any of its subsidiaries, making investments in or having relationships with Competing
Businesses, or otherwise engaging in any commercial activity; and none of the Corporation, any of its subsidiaries or any other holder
of securities of the Corporation shall have any right with respect to any such investments or activities undertaken by such Preferred
Investor Party. Without limitation of the foregoing, each Preferred Investor Party may engage in or possess any interest in other business
ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Corporation or any
of its subsidiaries, and none of the Corporation, any of its subsidiaries or any other holder of securities of the Corporation shall
have any rights or expectancy by virtue of such Preferred Investor Party’s relationships with the Corporation, or otherwise in
and to such independent ventures or the income or profits derived therefrom; and the pursuit of any such venture, even if such investment
is in a Competing Business shall not be deemed wrongful or improper. No Preferred Investor Party shall be obligated to present any particular
investment opportunity to the Corporation or any of its subsidiaries even if such opportunity is of a character that, if presented to
the Corporation or such subsidiary, could be taken by the Corporation or such subsidiary, and the Preferred Investor Party shall continue
to have the right to take for its own respective account or to recommend to others any such particular investment opportunity. The provisions
of this Article IX shall in no way limit or eliminate any Preferred Investor Party’s duties, responsibilities
and obligations with respect to the protection of any confidential or proprietary information of the Corporation and any of its subsidiaries,
including any applicable duty to not disclose or use such confidential or proprietary information improperly or to obtain therefrom an
improper personal benefit.
* * *
[SIGNATURE PAGE
FOLLOWS]
IN
WITNESS WHEREOF, this Seventh Amended and Restated Certificate of Incorporation has been executed by the Chief Executive Officer of the
Corporation this 6th day of May 2024.
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STARTENGINE CROWDFUNDING, INC. |
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By: |
/s/
Howard Marks |
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Howard Marks |
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Chief Executive Officer |
Exhibit 3.2
SECOND
AMENDED AND RESTATED
BYLAWS
OF
STARTENGINE CROWDFUNDING, INC.
MAY 6, 2024
TABLE OF CONTENTS
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Page |
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article I CORPORATE OFFICES |
1 |
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1.1 |
Registered Office |
1 |
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1.2 |
Other Offices |
1 |
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article II MEETINGS OF STOCKHOLDERS |
1 |
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2.1 |
Place of Meetings |
1 |
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2.2 |
Annual Meeting |
1 |
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2.3 |
Special Meeting |
2 |
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2.4 |
Notice of Stockholders' Meetings |
2 |
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2.5 |
Manner of Giving Notice; Affidavit of Notice |
2 |
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2.6 |
Quorum |
2 |
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2.7 |
Adjourned Meeting; Notice |
2 |
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2.8 |
Conduct of Business |
3 |
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2.9 |
Voting |
3 |
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2.10 |
Waiver of Notice |
3 |
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2.11 |
Stockholder Action by Written Consent Without a Meeting |
3 |
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2.12 |
Record Date for Stockholder Notice; Voting; Giving Consents |
4 |
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2.13 |
Proxies |
5 |
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2.14 |
List of Stockholders Entitled to Vote |
5 |
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article III DIRECTORS |
6 |
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3.1 |
Powers |
6 |
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3.2 |
Number of Directors |
6 |
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3.3 |
Election, Qualification and Term of Office of Directors |
6 |
3.4 |
Resignation and Vacancies |
6 |
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3.5 |
Place of Meetings; Meetings by Telephone |
7 |
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3.6 |
First Meetings |
7 |
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3.7 |
Regular Meetings |
8 |
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3.8 |
Special Meetings; Notice |
8 |
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3.9 |
Quorum |
8 |
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3.10 |
Waiver of Notice |
8 |
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3.11 |
Adjourned Meeting; Notice |
8 |
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3.12 |
Board Action by Written Consent Without a Meeting |
9 |
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3.13 |
Fees and Compensation of Directors |
9 |
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3.14 |
Removal of Directors |
9 |
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article IV COMMITTEES |
9 |
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4.1 |
Committees of Directors |
9 |
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4.2 |
Committee Minutes |
10 |
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4.3 |
Meetings and Action of Committees |
10 |
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article V OFFICERS |
10 |
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5.1 |
Officers |
10 |
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5.2 |
Election of Officers |
10 |
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5.3 |
Subordinate Officers |
11 |
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5.4 |
Removal and Resignation of Officers |
11 |
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5.5 |
Vacancies in Offices |
11 |
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5.6 |
Chairman of the Board |
11 |
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5.7 |
Chief Executive Officer |
11 |
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5.8 |
President |
12 |
5.9 |
Chief Financial Officer |
12 |
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5.10 |
Vice President |
12 |
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5.11 |
Secretary |
13 |
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5.12 |
Treasurer |
13 |
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5.13 |
Assistant Secretary |
13 |
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5.14 |
Assistant Treasurer |
14 |
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5.15 |
Authority and Duties of Officers |
14 |
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article VI INDEMNITY |
14 |
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6.1 |
Indemnification of Directors and Officers |
14 |
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6.2 |
Indemnification of Others |
14 |
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6.3 |
Insurance |
15 |
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6.4 |
Prepayment of Expenses |
15 |
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6.5 |
Claims |
15 |
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6.6 |
Non-exclusivity of Rights |
15 |
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6.7 |
Other Indemnification |
15 |
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6.8 |
Effect of Amendment or Repeal |
15 |
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article VII RECORDS AND REPORTS |
16 |
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7.1 |
Maintenance and Inspection of Records |
16 |
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7.2 |
Inspection by Directors |
16 |
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7.3 |
Annual Statement to Stockholders |
16 |
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7.4 |
Annual Report |
17 |
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7.5 |
Representation of Shares of Other Corporations |
17 |
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article VIII GENERAL MATTERS |
17 |
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8.1 |
Checks |
17 |
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8.2 |
Execution of Corporate Contracts and Instruments |
17 |
8.3 |
Stock Certificates; Partly Paid Shares |
17 |
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8.4 |
Special Designation on Certificates |
18 |
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8.5 |
Lost Certificates |
18 |
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8.6 |
Construction; Definitions |
18 |
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8.7 |
Dividends |
19 |
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8.8 |
Fiscal Year |
19 |
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8.9 |
Seal |
19 |
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8.10 |
Transfer of Stock |
19 |
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8.11 |
Stock Transfer Agreements |
19 |
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8.12 |
Registered Stockholders |
19 |
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article IX AMENDMENTS |
20 |
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article X DISSOLUTION |
20 |
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article XI CUSTODIAN |
21 |
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11.1 |
Appointment of a Custodian in Certain Cases |
21 |
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11.2 |
Duties of Custodian |
21 |
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article XII NOTICE BY ELECTRONIC TRANSMISSION |
21 |
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12.1 |
Notice by Electronic Transmission |
21 |
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12.2 |
Definition of Electronic Transmission |
22 |
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12.3 |
Inapplicability |
22 |
STARTENGINE CROWDFUNDING, INC.
BYLAWS
article
I
CORPORATE
OFFICES
The registered office of the corporation in the
State of Delaware shall be 1209 Orange Street, County of New Castle, Wilmington, Delaware 19801. The name of the registered agent of the
corporation at such location is The Corporation Trust Company.
The board of directors may at any time establish
other offices at any place or places where the corporation is qualified to do business.
article
II
MEETINGS
OF STOCKHOLDERS
Meetings of stockholders shall be held at any place,
within or outside the State of Delaware, designated by 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 Delaware General Corporation Law. In the absence of any such designation, stockholders' meetings
shall be held at the registered office of the corporation.
An annual meeting of stockholders shall be held
for the election of directors at such date and time as may be designated by resolution of the board of directors from time to time. Any
other proper business may be transacted at the annual meeting. The corporation shall not be required to hold an annual meeting of stockholders
provided that (i) the stockholders are permitted to act by written consent under the corporation’s certificate of incorporation
and these bylaws, (ii) the stockholders take action by written consent to elect directors and (iii) the stockholders unanimously
consent to such action or, if such consent is less than unanimous, all of the directorships to which directors could be elected at an
annual meeting held at the effective time of such action are vacant and are filled by such action.
A special meeting of the stockholders may be called,
at any time for any purpose or purposes, by the board of directors or by such person or persons as may be authorized by the certificate
of incorporation or the bylaws.
2.4 |
Notice of Stockholders' Meetings |
All notices of meetings with stockholders shall
be in writing and shall be sent or otherwise given in accordance with either Section 2.5 or Section 12 of these bylaws not less
than 10 or more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. The notice shall specify
the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may
be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose or purposes for which the
meeting is called.
2.5 |
Manner of Giving Notice; Affidavit of Notice |
Written notice of any meeting of stockholders,
(i) if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as
it appears on the records of the corporation, or (ii) if electronically transmitted, as provided in Section 12 of these bylaws.
An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall,
in the absence of fraud, be prima facie evidence of the facts stated therein.
The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however,
such quorum is not present or represented at any meeting of the stockholders, then the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum is present or represented. At such adjourned meeting at which a quorum is present or represented, any business
may be transacted that might have been transacted at the meeting as originally noticed.
2.7 |
Adjourned Meeting; Notice |
When a meeting is adjourned to another time or
place, unless these bylaws otherwise require, 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 announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact
any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the adjournment
a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting.
Meetings of stockholders shall be presided over
by the chairman of the board, if any, or in his or her absence by the vice chairman of the board, if any, or in his or her absence by
the president, or in his or her absence by a vice president, or in the absence of the foregoing persons by a chairperson designated by
the board of directors, or in the absence of such designation by a chairperson chosen at the meeting. The secretary shall act as secretary
of the meeting, but in his or her absence the chairperson of the meeting may appoint any person to act as secretary of the meeting. The
chairperson of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation
of the manner of voting and the conduct of business.
The stockholders entitled to vote at any meeting
of stockholders shall be determined in accordance with the provisions of Section 2.12 of these bylaws, subject to the provisions
of Sections 217 and 218 of the General Corporation Law of Delaware (relating to voting rights of fiduciaries, pledgors and joint owners
of stock and to voting trusts and other voting agreements, respectively).
Except as may be otherwise provided in the certificate
of incorporation, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder.
Whenever notice is required to be given under any
provision of the Delaware General Corporation Law, the certificate of incorporation or these bylaws, a written waiver, signed by the person
entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time of the event
for which notice is to be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor
the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice or any waiver by
electronic transmission unless so required by the certificate of incorporation or these bylaws.
2.11 |
Stockholder Action by Written Consent Without a Meeting |
Unless otherwise provided in the certificate of
incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action that
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, is 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 and delivered to the corporation by delivery to its registered office in Delaware, its principal
place of business, or an officer or agent of the corporation having custody of the book in which proceedings of meetings of stockholders
are recorded. Delivery made to the corporation's registered office shall be by hand or by certified or registered mail, return receipt
requested.
No written consent shall be effective to take the
corporate action referred to therein unless written consents signed by a sufficient number of holders or members to take action are delivered
to the corporation in the manner required by this section 2.11 within 60 days of the first date on which any written consent is so delivered
to the corporation. .
A telegram, cablegram or other electronic transmission
consenting 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 and signed provided that any such telegram, cablegram or other electronic transmission
sets forth or is delivered with information from which the corporation can determine (A) that the telegram, cablegram or other electronic
transmission was transmitted by the stockholder or proxyholder or by a person or persons authorized to act for the stockholder or proxyholder
and (B) the date on which such stockholder or proxyholder or authorized person or persons transmitted such telegram, cablegram or
electronic transmission. Delivery shall be given in accordance with applicable law.
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.
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. In the
event that the action which is consented to is such as would have required the filing of a certificate under any section of the General
Corporation Law of Delaware, if such action had been voted on by stockholders at a meeting thereof, the certificate filed under such section
shall state, in lieu of any statement required by such section concerning any vote of stockholders, that written consent has been given
as provided in Section 228 of the General Corporation Law of Delaware.
2.12 |
Record Date for Stockholder Notice; Voting; Giving Consents |
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 express consent
to corporate action in writing without a meeting, 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, in advance, a record date, which shall not be more than 60 nor less than 10 days before
the date of such meeting, nor more than 60 days prior to any other action.
If the board of directors does not so fix a record
date:
(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.
(ii) The
record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action
by the board of directors is necessary, shall be the day on which the first written consent is expressed.
(iii) 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.
A determination of stockholders of record entitled
to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board
of directors may fix a new record date for the adjourned meeting.
Each stockholder entitled to vote at a meeting
of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons
to act for him by a written proxy, signed by the stockholder and filed with the secretary of the corporation, but no such proxy shall
be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be deemed signed
if the stockholder's name is placed on the proxy (whether by manual signature, typewriting, telegraphic transmission, electronically or
otherwise) by the stockholder or the stockholder's attorney-in-fact. The revocability of a proxy that states on its face that it is irrevocable
shall be governed by the provisions of Section 212(c) of the General Corporation Law of Delaware.
2.14 |
List of Stockholders Entitled to Vote |
The corporation shall prepare, at least 10 days before every 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. The corporation shall not be required
to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meeting for a period of at least 10 days ending on the day before the meeting date:
(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 corporation’s principal executive office. 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.
article
III
DIRECTORS
Subject to the provisions of the General Corporation
Law of Delaware and any limitations in the certificate of incorporation or these bylaws relating to action required to be approved by
the stockholders or by the outstanding shares, the business and affairs of the corporation shall be managed and all corporate powers shall
be exercised by or under the direction of the board of directors.
The exact number of directors shall be determined
from time to time by resolution of the board of directors, provided the board of directors shall consist of at least one member. This
number of directors may be changed by a duly adopted amendment to the certificate of incorporation or by an amendment to this bylaw duly
adopted by the vote or written consent of the holders of a majority of the stock issued and outstanding and entitled to vote or by resolution
of a majority of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation.
No reduction of the authorized number of directors
shall have the effect of removing any director before that director's term of office expires.
3.3 |
Election, Qualification and Term of Office of Directors |
Except as provided in Section 3.4 of these
bylaws, directors shall be elected at each annual meeting of stockholders to hold office until the next annual meeting or special meeting
called for such purpose. Directors need not be stockholders unless so required by the certificate of incorporation or these bylaws, wherein
other qualifications for directors may be prescribed. Each director, including a director elected to fill a vacancy, shall hold office
until such director's successor is elected and qualified or until such director's earlier resignation or removal.
Elections of directors need not be by written ballot.
3.4 |
Resignation and Vacancies |
Any director may resign at any time upon written
notice to the corporation. When one or more directors so resigns and the resignation is 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 as provided in
this section in the filling of other vacancies.
Unless otherwise provided in the certificate of
incorporation or these bylaws:
(i) Vacancies
and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having
the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a
sole remaining director.
(ii) Whenever
the holders of any class or classes of stock or series thereof are entitled to elect one or more directors by the provisions of the certificate
of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors
elected by such class or classes or series thereof then in office, or by a sole remaining director so elected.
If at any time, by reason of death or resignation
or other cause, the corporation should have no directors in office, then any officer or any stockholder or an executor, administrator,
trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person or estate of a stockholder,
may call a special meeting of stockholders in accordance with the provisions of the certificate of incorporation or these bylaws, or may
apply to the Court of Chancery for a decree summarily ordering an election as provided in Section 211 of the General Corporation
Law of Delaware.
If, at the time of filling any vacancy or any newly
created directorship, the directors then in office constitute less than a majority of the whole board (as constituted immediately prior
to any such increase), then the Court of Chancery may, upon application of any stockholder or stockholders holding at least 10 percent
of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to
be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office
as aforesaid, which election shall be governed by the provisions of Section 211 of the General Corporation Law of Delaware as far
as applicable.
3.5 |
Place of Meetings; Meetings by Telephone |
The board of directors of the corporation may hold
meetings, both regular and special, either within or outside the State of Delaware.
Unless otherwise restricted by the certificate
of incorporation or these bylaws, members of the board of directors, or any committee designated by the board of directors, may participate
in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means
of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in
person at the meeting.
The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of
such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be
present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of
directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such
time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall
be specified in a written waiver signed by all of the directors.
Regular meetings of the board of directors may
be held without notice at such time and at such place as shall from time to time be determined by the board of directors.
3.8 |
Special Meetings; Notice |
Special meetings of the board of directors may
be called by the president on three days' notice to each director either personally by hand, by courier, mail, telegram, facsimile, telex,
electronic mail or telephone; special meetings shall be called by the president or secretary in like manner and on like notice on the
written request of two directors unless the board consists of only one director, in which case special meetings shall be called by the
president or secretary in like manner and on like notice on the written request of the sole director.
At all meetings of the board of directors, a majority
of the number of directors then elected to and serving on the board of directors shall constitute a quorum for the transaction of business
and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors,
except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum is not present at any
meeting of the board of directors, then the directors present thereat may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present.
Whenever notice is required to be given under any
provision of the General Corporation Law of Delaware or of the certificate of incorporation or these bylaws, a written waiver thereof,
signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance
of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the directors, or members of
a committee of directors, need be specified in any written waiver of notice unless so required by the certificate of incorporation or
these bylaws.
3.11 |
Adjourned Meeting; Notice |
If a quorum is not present at any meeting of the
board of directors, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present.
3.12 |
Board Action by Written Consent Without a 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 or committee, as the case may be, consent thereto in writing or by
electronic transmission and the writing or writings or electronic transmission or transmissions 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.
3.13 |
Fees and Compensation of Directors |
Unless otherwise restricted by the certificate
of incorporation or these bylaws, the board of directors shall have the authority to fix the compensation of directors.
3.14 |
Removal of Directors |
Unless otherwise restricted by statute, by the
certificate of incorporation or by these bylaws, any director or the entire board of directors may be removed, with or without cause,
by the holders of a majority of the shares then entitled to vote at an election of directors.
No reduction of the authorized number of directors
shall have the effect of removing any director prior to the expiration of such director's term of office.
article
IV
COMMITTEES
4.1 |
Committees of Directors |
The board of directors may designate one or more
committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors
as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The bylaws may
provide that in the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified
from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the board of directors
to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution
of the board of directors or in the bylaws of the corporation, shall have and may exercise all the powers and authority of the board of
directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed
to all papers that may require it; but no such committee shall have the power or authority in reference to the following matter: (i) approving
or adopting, or recommending to the stockholders, any action or matter expressly required to be submitted to stockholders for approval
or (ii) adopting, amending or repealing any bylaw of the corporation.
Each committee shall keep regular minutes of its
meetings and report the same to the board of directors when required.
4.3 |
Meetings and Action of Committees |
Meetings and actions of committees shall be governed
by, and held and taken in accordance with, the provisions of Article III of these bylaws, Section 3.5 (place of meetings and
meetings by telephone), Section 3.7 (regular meetings), Section 3.8 (special meetings and notice), Section 3.9 (quorum),
Section 3.10 (waiver of notice), Section 3.11 (adjournment and notice of adjournment), and Section 3.12 (action without
a meeting), with such changes in the context of those bylaws as are necessary to substitute the committee and its members for the board
of directors and its members; provided, however, that the time of regular meetings of committees may also be called by resolution of the
board of directors, that special meetings of committees may also be called by resolution of the board of directors, and that notice of
special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee.
The board of directors may adopt rules for the government of any committee not inconsistent with the provisions of these bylaws.
article
V
OFFICERS
The officers of the corporation shall include a
president, a secretary, and a treasurer. The corporation may also have, at the discretion of the board of directors, a chairman of the
board, one or more vice presidents, assistant secretaries, assistant treasurers, and any such other officers as may be appointed in accordance
with the provisions of Section 5.3 of these bylaws. Any number of offices may be held by the same person.
The officers of the corporation, except such officers
as may be appointed in accordance with the provisions of Sections 5.3 or 5.5 of these bylaws, shall be chosen by the board of directors,
subject to the rights, if any, of an officer under any contract of employment.
The board of directors may appoint, or empower
the president to appoint, such other officers and agents as the business of the corporation may require, each of whom shall hold office
for such period, have such authority, and perform such duties as are provided in these bylaws or as the board of directors may from time
to time determine.
5.4 |
Removal and Resignation of Officers |
Subject to the rights, if any, of an officer under
any contract of employment, any officer may be removed, either with or without cause, by an affirmative vote of the majority of the board
of directors at any regular or special meeting of the board or, except in the case of an officer chosen by the board of directors, by
any officer upon whom such power of removal may be conferred by the board of directors.
Any officer may resign at any time by giving written
notice to the corporation. Any resignation shall take effect at the date of the receipt of that notice or at any later time specified
in that notice; and, unless otherwise specified in that notice, the acceptance of the resignation shall not be necessary to make it effective.
Any resignation is without prejudice to the rights, if any, of the corporation under any contract to which the officer is a party.
Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
5.6 |
Chairman of the Board |
The chairman of the board, if such an officer be
elected, shall, if present, preside at meetings of the board of directors and exercise and perform such other powers and duties as may
from time to time be assigned to him by the board of directors or as may be prescribed by these bylaws. If there is no president, then
the chairman of the board shall also be the chief executive officer of the corporation and shall have the powers and duties prescribed
in Section 5.7 of these bylaws.
5.7 |
Chief Executive Officer |
Subject to such supervisory powers, if any, as
may be given by the board of directors to the chairman of the board, if there be such an officer, the chief executive officer (if such
an officer is appointed) shall, subject to the control of the board of directors, have general supervision, direction, and control of
the business and the officers of the corporation. He shall preside at all meetings of the shareholders and, in the absence or nonexistence
of a chairman of the board, at all meetings of the board of directors. He shall have the general powers and duties of management usually
vested in the office of chief executive officer of a corporation, and shall have such other powers and duties as may be prescribed by
the board of directors or these bylaws.
The person serving as chief executive officer shall
also be the acting president of the corporation whenever no other person is then serving in such capacity.
Subject to such supervisory powers, if any, as
may be given by the board of directors to the chairman of the board, if there be such an officer, or the chief executive officer, the
president shall, subject to the control of the board of directors, have general supervision, direction, and control of the business and
the officers of the corporation. He shall have the general powers and duties of management usually vested in the office of president of
a corporation and shall have such other powers and duties as may be prescribed by the board of directors or these bylaws.
The person serving as president shall also be the
acting chief executive officer, secretary or treasurer of the corporation, as applicable, whenever no other person is then serving in
such capacity.
5.9 |
Chief Financial Officer |
The chief financial officer shall keep and maintain,
or cause to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of
the corporation, including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings, and
shares. The books of account shall at all reasonable times be open to inspection by any director.
The chief financial officer shall deposit all money
and other valuables in the name and to the credit of the corporation with such depositaries as may be designated by the board of directors.
He shall disburse the funds of the corporation as may be ordered by the board of directors, shall render to the chief executive officer
and directors, whenever they request it, an account of all of his transactions as chief financial officer and of the financial condition
of the corporation, and shall have such other powers and perform such other duties as may be prescribed by the board of directors or these
bylaws.
The person serving as the chief financial officer
shall also be the acting treasurer of the corporation whenever no other person is then serving in such capacity. Subject to such supervisory
powers (if any) as may be given by the Board of Directors to another officer of the corporation, the chief financial officer shall supervise
and direct the responsibilities of the treasurer whenever someone other than the chief financial officer is serving as treasurer of the
corporation.
In the absence or disability of the president,
the vice presidents, if any, in order of their rank as fixed by the board of directors or, if not ranked, a vice president designated
by the board of directors, shall perform all the duties of the president and when so acting shall have all the powers of, and be subject
to all the restrictions upon, the president. The vice presidents shall have such other powers and perform such other duties as from time
to time may be prescribed for them respectively by the board of directors, these bylaws, the president or the chairman of the board.
The secretary shall keep or cause to be kept, at
the principal executive office of the corporation or such other place as the board of directors may direct, a book of minutes of all meetings
and actions of directors, committees of directors, and stockholders. The minutes shall show the time and place of each meeting, whether
regular or special (and, if special, how authorized and the notice given), the names of those present at directors' meetings or committee
meetings, the number of shares present or represented at stockholders' meetings, and the proceedings thereof.
The secretary shall administer or allow to be administered
on company’s behalf, as determined by resolution of the board of directors, a stock ledger, which consists of records administered
by or on behalf of the corporation in which the names of all of the corporation’s stockholders of record, the address and number
of shares registered in the name of each such stockholder, and all issuances and transfers of stock of the corporation are recorded.
The secretary shall give, or cause to be given,
notice of all meetings of the stockholders and of the board of directors required to be given by law or by these bylaws. He shall keep
the seal of the corporation, if one be adopted, in safe custody and shall have such other powers and perform such other duties as may
be prescribed by the board of directors or by these bylaws.
The treasurer shall keep and maintain, or cause
to be kept and maintained, adequate and correct books and records of accounts of the properties and business transactions of the corporation,
including accounts of its assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings, and shares. The books
of account shall at all reasonable times be open to inspection by any director.
The treasurer shall deposit all money and other
valuables in the name and to the credit of the corporation with such depositaries as may be designated by the board of directors. He shall
disburse the funds of the corporation as may be ordered by the board of directors, shall render to the president and directors, whenever
they request it, an account of all of his transactions as treasurer and of the financial condition of the corporation, and shall have
such other powers and perform such other duties as may be prescribed by the board of directors or these bylaws.
The assistant secretary, or, if there is more than
one, the assistant secretaries in the order determined by the stockholders or board of directors (or if there be no such determination,
then in the order of their election) shall, in the absence of the secretary or in the event of his or her inability or refusal to act,
perform the duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board
of directors or the stockholders may from time to time prescribe.
The assistant treasurer, or, if there is more than
one, the assistant treasurers, in the order determined by the stockholders or board of directors (or if there be no such determination,
then in the order of their election), shall, in the absence of the treasurer or in the event of his or her inability or refusal to act,
perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board
of directors or the stockholders may from time to time prescribe.
5.15 |
Authority and Duties of Officers |
In addition to the foregoing authority and duties,
all officers of the corporation shall respectively have such authority and perform such duties in the management of the business of the
corporation as may be designated from time to time by the board of directors or the stockholders.
article
VI
INDEMNITY
6.1 |
Indemnification of Directors and Officers |
The corporation shall, to the maximum extent and
in the manner permitted by the General Corporation Law of Delaware, indemnify each of its directors and officers against expenses (including
attorneys' fees), judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding,
arising by reason of the fact that such person is or was an agent of the corporation. For purposes of this Section 6.1, a “director”
or “officer” of the corporation includes any person (i) who is or was a director or officer of the corporation,
(ii) who is or was serving at the request of the corporation as a director or officer of another corporation, partnership, joint
venture, trust or other enterprise, or (iii) who was a director or officer of a corporation which was a predecessor corporation of
the corporation or of another enterprise at the request of such predecessor corporation.
6.2 |
Indemnification of Others |
The corporation shall have the power, to the extent
and in the manner permitted by the General Corporation Law of Delaware, to indemnify each of its employees and agents (other than directors
and officers) against expenses (including attorneys' fees), judgments, fines, settlements, and other amounts actually and reasonably incurred
in connection with any proceeding, arising by reason of the fact that such person is or was an agent of the corporation. For purposes
of this Section 6.2, an “employee” or “agent” of the corporation (other than a director or
officer) includes any person (i) who is or was an employee or agent of the corporation, (ii) who is or was serving at the request
of the corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (iii) who
was an employee or agent of a corporation which was a predecessor corporation of the corporation or of another enterprise at the request
of such predecessor corporation.
The corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or
not the corporation would have the power to indemnify him against such liability under the provisions of the General Corporation Law of
Delaware.
6.4 |
Prepayment of Expenses |
The corporation shall pay the expenses incurred
in defending any proceeding in advance of its final disposition, provided, however, that the payment of expenses incurred by a director
or officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the director or
officer to repay all amounts advanced if it should be ultimately determined that the director or officer is not entitled to be indemnified
under this Article or otherwise.
If a claim for indemnification or payment of expenses
under this Article VI is not paid in full within sixty days after a written claim therefor has been received by the corporation the
claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid
the expense of prosecuting such claim. In any such action the corporation shall have the burden of proving that the claimant was not entitled
to the requested indemnification or payment of expenses under applicable law.
6.6 |
Non-exclusivity of Rights |
The rights conferred on any person by this Article VI
shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of the certificate
of incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
6.7 |
Other Indemnification |
The corporation’s obligation, if any, to
indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such person may collect as indemnification from such
other corporation, partnership, joint venture, trust, enterprise or non-profit enterprise.
6.8 |
Effect of Amendment or Repeal |
Any amendment or repeal of the foregoing provisions
of this Article VI shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring
prior to the time of such amendment or repeal.
article
VII
RECORDS
AND REPORTS
7.1 |
Maintenance and Inspection of Records |
The corporation shall administer or allow to be
administered on its behalf, its stock ledger, a copy of these bylaws as amended to date, accounting books, and other records. These records
may be kept on, or by means of, or be in the form of, any information storage device, method, or one or more electronic networks or databases
(including one or more distributed electronic networks or databases), provided that the records so kept can be converted into clearly
legible paper form within a reasonable time. The corporation shall so convert any records so kept upon the request of any person entitled
to inspect such records in such form pursuant to applicable law. The “stock ledger” means one or more records administered
by or on behalf of the corporation in which the names of all of the corporation’s stockholders of record, the address and number
of shares registered in the name of each such stockholder, and all issuances and transfers of stock of the corporation are recorded
Any stockholder of record, in person or by attorney
or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business
to inspect for any proper purpose the corporation's stock ledger, a list of its stockholders, and its other books and records and to make
copies or extracts therefrom. Nothing contained in this section 7.1 shall require the corporation to include electronic mail addresses
or other electronic contact information on such list. A proper purpose shall mean a purpose reasonably related to such person's interest
as a stockholder. In every instance where an attorney or other agent is the person who seeks the right to inspection, the demand under
oath shall be accompanied by a power of attorney or such other writing that authorizes the attorney or other agent to so act on behalf
of the stockholder. The demand under oath shall be directed to the corporation at its registered office in Delaware or at its principal
place of business.
7.2 |
Inspection by Directors |
Any director shall have the right to examine the
corporation's stock ledger, a list of its stockholders, and its other books and records for a purpose reasonably related to his position
as a director. The Court of Chancery is hereby vested with the exclusive jurisdiction to determine whether a director is entitled to the
inspection sought. The Court may summarily order the corporation to permit the director to inspect any and all books and records, the
stock ledger, and the stock list and to make copies or extracts therefrom. The Court may, in its discretion, prescribe any limitations
or conditions with reference to the inspection, or award such other and further relief as the Court may deem just and proper.
7.3 |
Annual Statement to Stockholders |
The board of directors shall present at each annual
meeting, and at any special meeting of the stockholders when called for by vote of the stockholders, a full and clear statement of the
business and condition of the corporation.
The corporation shall cause an annual report to
be sent to the stockholders of the corporation to the extent required by applicable law. If and so long as there are fewer than 100 holders
of record of the corporation’s shares, the requirement of sending of an annual report to the stockholders of the corporation is
expressly waived (to the extent permitted under applicable law).
7.5 |
Representation of Shares of Other Corporations |
The chairman 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 shares of any other corporation or corporations 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
VIII
GENERAL
MATTERS
From time to time, the board of directors shall
determine by resolution which person or persons may sign or endorse all checks, drafts, other orders for payment of money, notes or other
evidences of indebtedness that are issued in the name of or payable to the corporation, and only the persons so authorized shall sign
or endorse those instruments.
8.2 |
Execution of Corporate Contracts and Instruments |
The board of directors, except as otherwise provided
in these bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument in the
name of and on behalf of the corporation; such authority may be general or confined to specific instances. Unless so authorized or ratified
by the board of directors or within the agency power of an officer, no officer, agent or employee shall have any power or authority to
bind the corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.
8.3 |
Stock Certificates; Partly Paid Shares |
The shares of a corporation shall be represented
by certificates, provided that the board of directors of the corporation 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. Notwithstanding the adoption of such a resolution by the board
of directors, every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled
to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors, or the
president or vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of such corporation
representing the number of shares registered in certificate form. 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 has 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 were such officer, transfer agent or registrar at the date of issue.
8.4 |
Special Designation on Certificates |
If the corporation is authorized to issue more
than one class of stock or more than one series of any class, then the powers, the designations, the preferences, and the 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 any certificate that the corporation shall issue
to represent such class or series of stock; provided, however, that, except as otherwise provided in Section 202 of the General Corporation
Law of Delaware, in lieu of the foregoing requirements there may be set forth on the face or back of the certificate that 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, the designations, the preferences, and the 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.
Except as provided in this Section 8.5, no
new certificates for certificated shares shall be issued to replace a previously issued certificate unless the latter is surrendered to
the corporation and canceled at the same time. The corporation may issue a new certificate of stock or uncertificated shares in the place
of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner
of the lost, stolen or destroyed certificate, or his legal representative, to give the corporation a bond sufficient to indemnify it against
any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate or uncertificated shares.
8.6 |
Construction; Definitions |
Unless the context requires otherwise, the general
provisions, rules of construction, and definitions in the Delaware General Corporation Law shall govern the construction of these
bylaws. Without limiting the generality of this provision, the singular number includes the plural, the plural number includes the singular,
and the term “person” includes both a corporation and a natural person.
The directors of the corporation, subject to any
restrictions contained in the certificate of incorporation, may declare and pay dividends upon the shares of its capital stock pursuant
to the General Corporation Law of Delaware. Dividends may be paid in cash, in property, or in shares of the corporation's capital stock.
The directors of the corporation may set apart
out of any of the funds of the corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such
reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the corporation,
and meeting contingencies.
The fiscal year of the corporation shall be fixed
by resolution of the board of directors and may be changed by the board of directors.
The seal of the corporation shall be such as from
time to time may be approved by the board of directors.
Upon surrender to the corporation or the transfer
agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority
to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate,
and record the transaction in its books.
8.11 |
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 General
Corporation Law of Delaware.
8.12 |
Registered Stockholders |
The corporation shall be entitled to recognize
the exclusive right of a person registered on its stock ledger as the owner of shares to receive dividends and to vote as such owner,
shall be entitled to hold liable for calls and assessments the person registered on its stock ledger as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or
not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware.
article
IX
AMENDMENTS
The original or other bylaws of the corporation
may be adopted, amended or repealed by the stockholders entitled to vote; provided, however, that the corporation may, in its certificate
of incorporation, confer the power to adopt, amend or repeal bylaws upon the directors. The fact that such power has been so conferred
upon the directors shall not divest the stockholders of the power, nor limit their power to adopt, amend or repeal bylaws.
article
X
DISSOLUTION
If it should be deemed advisable in the judgment
of the board of directors of the corporation that the corporation should be dissolved, the board, after the adoption of a resolution to
that effect by a majority of the whole board at any meeting called for that purpose, shall cause notice to be mailed to each stockholder
entitled to vote thereon of the adoption of the resolution and of a meeting of stockholders to take action upon the resolution.
At the meeting a vote shall be taken for and against
the proposed dissolution. If a majority of the outstanding stock of the corporation entitled to vote thereon votes for the proposed dissolution,
then a certificate stating that the dissolution has been authorized in accordance with the provisions of Section 275 of the General
Corporation Law of Delaware and setting forth the names and residences of the directors and officers shall be executed, acknowledged,
and filed and shall become effective in accordance with Section 103 of the General Corporation Law of Delaware. Upon such certificate's
becoming effective in accordance with Section 103 of the General Corporation Law of Delaware, the corporation shall be dissolved.
Whenever all the stockholders entitled to vote
on a dissolution consent in writing, either in person or by duly authorized attorney, to a dissolution, no meeting of directors or stockholders
shall be necessary. The consent shall be filed and shall become effective in accordance with Section 103 of the General Corporation
Law of Delaware. Upon such consent's becoming effective in accordance with Section 103 of the General Corporation Law of Delaware,
the corporation shall be dissolved. If the consent is signed by an attorney, then the original power of attorney or a photocopy thereof
shall be attached to and filed with the consent. The consent filed with the Secretary of State shall have attached to it the affidavit
of the secretary or some other officer of the corporation stating that the consent has been signed by or on behalf of all the stockholders
entitled to vote on a dissolution; in addition, there shall be attached to the consent a certification by the secretary or some other
officer of the corporation setting forth the names and residences of the directors and officers of the corporation.
article
XI
CUSTODIAN
11.1 |
Appointment of a Custodian in Certain Cases |
The Court of Chancery, upon application of any
stockholder, may appoint one or more persons to be custodians and, if the corporation is insolvent, to be receivers, of and for the corporation
when:
(i) at
any meeting held for the election of directors the stockholders are so divided that they have failed to elect successors to directors
whose terms have expired or would have expired upon qualification of their successors; or
(ii) the
business of the corporation is suffering or is threatened with irreparable injury because the directors are so divided respecting the
management of the affairs of the corporation that the required vote for action by the board of directors cannot be obtained and the stockholders
are unable to terminate this division; or
(iii) the
corporation has abandoned its business and has failed within a reasonable time to take steps to dissolve, liquidate or distribute its
assets.
The custodian shall have all the powers and title
of a receiver appointed under Section 291 of the General Corporation Law of Delaware, but the authority of the custodian shall be
to continue the business of the corporation and not to liquidate its affairs and distribute its assets, except when the Court of Chancery
otherwise orders and except in cases arising under Sections 226(a)(3) or 352(a)(2) of the General Corporation Law of Delaware.
article
XII
NOTICE
BY ELECTRONIC TRANSMISSION
12.1 |
Notice by Electronic Transmission |
(i) 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 the Delaware General Corporation Law, the certificate of incorporation or these bylaws may be given in writing directed
to the stockholder’s mailing address (or by electronic electronic transmission directed to the stockholder’s electronic mail
address, as applicable) as it appears on the corporation’s records and shall be given:
|
(a) |
If mailed, when the notice is deposited in the U.S. mail, postage prepaid; |
|
(b) |
If delivered by courier service, the earlier of when the notice is received or left at such stockholder’s address: or |
(c) If
given by electronic mail, when directed to such stockholder’s electronic mail address unless the stockholder has notified the corporation
in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice is prohibited by subsection
(v) of this section.
A notice by electronic mail must include a prominent
legend that the communication is an important notice regarding the corporation.
(ii) Without limiting
the manner by which notice otherwise may be given effectively to stockholders, but subject to subsection (v) of this section, any
notice to stockholders given by the corporation under the Delaware General Corporation Law, the certificate of incorporation, or the 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 or electronic transmission to the corporation. A corporation may give
notice electronic mail in accordance with subsection (i) of this section without obtaining the consent required by this subsection.
(iii) Notice
given pursuant to subsection (ii) of this section shall be deemed given:
|
(a) |
If by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; |
|
(b) |
If by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of: |
|
(2) |
The giving of such separate notice; and |
|
(c) |
If by any other form of electronic transmission, when directed to the stockholder. |
(iv) Notwithstanding
the foregoing, a notice may not be given by an electronic transmission from and after the time that:
|
(a) |
The corporation is unable to deliver such electronic transmission 2 consecutive notices given by the corporation; and |
|
(b) |
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 discover such inability shall not invalidate any meeting or other action. |
(v) 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 shall, in
the absence of fraud, be prima facie evidence of the facts stated therein.
12.2 |
Definition of Electronic Transmission |
(i) “Electronic transmission”
means any form of communication, not directly involving the physical transmission of paper, including the use of, or participation in,
one or more electronic networks or databases (including one or more distributed electronic networks or databases), 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.
(ii) “Electronic
mail” means an electronic transmission directed to a unique mail address (which electronic mail shall be deemed to include any files
attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information of an officer or
agent of the corporation who is available to assist with accessing such files and information); and
(iii) “Electronic
mail address” means a destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox (commonly
referred to as the “local part” of the address) and a reference to an internet domain (commonly referred to as the “domain
part” of the addresss), whether or not displayed, to which electronic mail can be sent or delivered.
Notice by a form of electronic transmission shall
not apply to Sections 164, 296, 311, 312 or 324 of the Delaware General Corporation Law.
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