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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION
13 OR 15(d) OF THE
SECURITIES EXCHANGE
ACT OF 1934
Date of Report (Date of
earliest event reported): September 4, 2023
180
LIFE SCIENCES CORP.
(Exact Name of Registrant
as Specified in Charter)
Delaware |
|
001-38105 |
|
90-1890354 |
(State or Other Jurisdiction
of Incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
3000 El Camino Real, Bldg. 4,
Suite 200 Palo
Alto, CA |
|
94306 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
Registrant’s
telephone number, including area code: (650) 507-0669
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 pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common Stock, par value $0.0001 per share |
|
ATNF |
|
The
NASDAQ Stock Market LLC |
Warrants to purchase shares of Common Stock |
|
ATNFW |
|
The
NASDAQ Stock Market LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 3.03
Material Modification to Rights of Security Holders.
On
September 4, 2023, the Board of Directors (the “Board”) of 180 Life Sciences Corp. (the “Company”),
approved and adopted Second Amended and Restated Bylaws (the “Second Amended and Restated Bylaws”), which
became effective the same day.
The Second Amended and Restated
Bylaws amend the prior bylaws of the Company to, among other things (a) reduce the number of shares required to constitute a quorum
at a stockholders meeting of the holders of shares of outstanding capital stock of the Company to provide that stockholders holding one-third
of the voting power of all outstanding shares of capital stock of the Company entitled to vote at such meeting shall constitute a quorum
(Section 2.4); (b) remove the requirement to post the list of stockholders of the Company at meetings of stockholders (consistent
with certain recent Delaware General Corporation Law rule changes)(Section 2.5(a)); (c) update the bylaws to address certain recent
Securities and Exchange Commission rule changes in connection with Rule 14a-19 of the Securities Exchange Act of 1934, as amended, including
to confirm that any stockholder directly or indirectly soliciting proxies from other stockholders must use a proxy card color other than
white, which shall be reserved for the exclusive use by the Board of Directors (Section 2.5(d)); (d) clarify that if after the
adjournment of a meeting of stockholders, a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the
Board of Directors shall fix a new record date for notice of such adjourned meeting, and shall give notice of the adjourned meeting to
each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting
(Section 2.6); (e) provide that except for proposals properly made in accordance with Rule 14a-8 under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), and included in the notice of meeting given by or at the direction of
the Board, Section 2.7(a)(iii) of the bylaws are the exclusive means for a stockholder to propose business to be brought before an annual
meeting of stockholders and stockholders seeking to nominate persons for election to the Board of Directors must comply with Section 3.2
of the bylaws or Rule 14a-19 promulgated under the Exchange Act, and that further Section 2.7 of the bylaws shall not be applicable to
nominations (Section 2.7); (f) provide that written consents to action without meetings of stockholders are not allowed, unless
otherwise provided for in the Certificate of Incorporation or any preferred stock designation, consistent with the Company’s Certificate
of Incorporation (as amended)(Section 2.9); (g) include the requirement for stockholders to comply with Rule 14a-19 of the Exchange
Act in connection with stockholder notices (Section 3.2); and (h) make certain other clarifying revisions to the bylaws.
Prior to the amendment to
the quorum requirements of the bylaws as discussed above, the presence, in person or by proxy, of holders of a majority of the voting
power of the shares of stock issued and outstanding and entitled to vote at the meeting would constitute a quorum for the transaction
of business at such meeting. The change to the quorum requirement for stockholder meetings was made to improve the Company’s
ability to hold stockholder meetings when called.
The foregoing description
of the Second Amended and Restated Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text
of the Second Amended and Restated Bylaws, a copy of which is attached hereto as Exhibit 3.1 and incorporated herein by reference.
Item 5.02 Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(e)
Effective
on September 4, 2023, the Board of Directors of the Company approved the grant of (1) incentive
stock options to purchase 75,000 shares of common stock to James N. Woody, M.D., Ph.D., the Chief Executive Officer of the Company; (2)
incentive stock options to purchase 15,000 shares of common stock to Jonathan Rothbard, Ph.D., the Chief Scientific Officer of the Company;
and (3) incentive stock options to purchase 15,000 shares of common stock to Ozan Pamir, the Chief Financial Officer of the Company (collectively,
the “Options”), in consideration for services to be rendered as officers of the Company through August 31, 2023. The
Options vest at the rate of 1/12th of such Options per calendar month, on the last day of each month, over a period of 12 months, with
the first vesting date being September 30, 2023.
All of the Options were granted
pursuant to, and are subject to the terms of, the Company’s First Amended and Restated 2022 Omnibus Incentive Plan (the “Plan”),
had a term of 10 years, and had an exercise price equal to $0.67 per share, the closing sales price of the Company’s common stock
on the last trading day prior to the date of grant.
The description of the Options
above is not complete and is qualified in its entirety to the Form of Stock Option Agreement which the Company plans to enter into with
each officer to evidence the grant of the Options, in the form attached hereto as Exhibit 10.2, which is incorporated by refence
herein.
Item 5.03 Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year.
The disclosure provided under Item 3.03 above
is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
|
180 LIFE SCIENCES CORP. |
|
|
|
Date: September 7, 2023 |
By: |
/s/ James N. Woody, M.D., Ph.D. |
|
|
James N. Woody, M.D., Ph.D. |
|
|
Chief Executive Officer |
3
Exhibit 3.1
SECOND AMENDED AND RESTATED BYLAWS
OF
180
Life Sciences Corp.
(THE
“CORPORATION”)
Amended and Restated by the Board of Directors
of the Corporation
on August 6, 2021 and September 4, 2023
ARTICLE I
OFFICES
Section 1.1. Registered
Office. The registered office of the Corporation within the State of Delaware shall be located at either (a) the principal place
of business of the Corporation in the State of Delaware or (b) the office of the corporation or individual acting as the Corporation’s
registered agent in Delaware.
Section 1.2. Additional
Offices. The Corporation may, in addition to its registered office in the State of Delaware, have such other offices and places of
business, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the “Board”)
may from time to time determine or as the business and affairs of the Corporation may require.
ARTICLE II
STOCKHOLDERS MEETINGS
Section 2.1. Annual
Meetings. The annual meeting of stockholders shall be held at such place and time and on such date as shall be determined by the Board
and stated in the notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held
at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(a). At each annual
meeting, the stockholders shall elect those directors of the Corporation to fill any term of a directorship that expires on the date of
such annual meeting and may transact any other business as may properly be brought before the meeting.
Section 2.2. Special
Meetings. Subject to the rights of the holders of any outstanding series of the preferred stock of the Corporation (“Preferred
Stock”), and to the requirements of applicable law, special meetings of stockholders, for any purpose or purposes, may be
called only by the Chairman of the Board, Chief Executive Officer, or the Board pursuant to a resolution adopted by a majority of the
Board. Special meetings of stockholders shall be held at such place and time and on such date as shall be determined by the Board and
stated in the Corporation’s notice of the meeting, provided that the Board may in its sole discretion determine that the meeting
shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(a).
Section 2.3. Notices. Notice
of each stockholders meeting stating the place, if any, date, and time of the meeting, and the means of remote communication, if any,
by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, shall be given in the manner permitted
by Section 9.3 to each stockholder entitled to vote thereat by the Corporation not less than 10 nor more than 60 days
before the date of the meeting. If said notice is for a stockholders meeting other than an annual meeting, it shall in addition state
the purpose or purposes for which the meeting is called, and the business transacted at such meeting shall be limited to the matters so
stated in the Corporation’s notice of meeting (or any supplement thereto). Any meeting of stockholders as to which notice has been
given may be postponed, and any special meeting of stockholders as to which notice has been given may be cancelled, by the Board upon
public announcement (as defined in Section 2.7(c)) given before the date previously scheduled for such meeting.
Section 2.4. Quorum.
Except as otherwise provided by applicable law, the Corporation’s Second Amended and Restated Certificate of Incorporation, as the
same may be amended or restated from time to time (the “Certificate of Incorporation”) or these Bylaws, the
presence, in person, by remote communication, or by proxy, at a stockholders meeting of the holders of shares of outstanding
capital stock of the Corporation representing one-third of the voting power of all outstanding shares of capital stock of the Corporation
entitled to vote at such meeting shall constitute a quorum for the transaction of business at such meeting, except that when specified
business is to be voted on by a class or series of stock voting as a class, the holders of shares representing one-third of the voting
power of the outstanding shares of such class or series shall constitute a quorum of such class or series for the transaction of such
business. If a quorum shall not be present or represented by proxy at any meeting of the stockholders of the Corporation, the chairman
of the meeting may adjourn the meeting from time to time in the manner provided in Section 2.6 until a quorum shall
attend. The stockholders present at a duly convened meeting may continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation or to another corporation, if
a majority of the voting power of the shares entitled to vote in the election of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing
shall not limit the right of the Corporation or any such other corporation to vote shares held by it in a fiduciary capacity.
Section 2.5. Voting
of Shares.
(a) Voting Lists.
The Secretary of the Corporation (the “Secretary”) shall prepare, or shall cause the officer or agent who has
charge of the stock ledger of the Corporation to prepare, at least 10 days before every meeting of stockholders, a complete list
of the stockholders of record entitled to vote at such meeting and showing the address and the number and class of shares registered in
the name of each stockholder. Nothing contained in this Section 2.5(a) shall require the Corporation to include
electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting: (i) on
a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice
of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that
the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that
such information is available only to stockholders of the Corporation.
(b) Manner of Voting.
At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized by the Board, the voting
by stockholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot submitted by electronic
transmission (as defined in Section 9.3), provided that any such electronic transmission must either set forth or be
submitted with information from which the Corporation can determine that the electronic transmission was authorized by the stockholder
or proxy holder. The Board, in its discretion, or the chairman of the meeting of stockholders, in such person’s discretion, may
require that any votes cast at such meeting shall be cast by written ballot.
(c) Proxies. Each
stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting
may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the Secretary until the meeting is
called to order, but shall be filed with the Secretary before being voted. Without limiting the manner in which a stockholder may authorize
another person or persons to act for such stockholder as proxy, either of the following shall constitute a valid means by which a stockholder
may grant such authority. No stockholder shall have cumulative voting rights.
(i) A stockholder may execute
a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by the stockholder
or such stockholder’s authorized officer, director, employee or agent signing such writing or causing such person’s signature
to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize
another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission
to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly
authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such electronic transmission
must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized
by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another
person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original writing or transmission for any
and all purposes for which the original writing or transmission could be used; provided that such copy, facsimile telecommunication or
other reproduction shall be a complete reproduction of the entire original writing or transmission.
(d) Required Vote.
Subject to the rights of the holders of one or more series of preferred stock of the Corporation (“Preferred Stock”),
voting separately by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, the election
of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the
meeting and entitled to vote thereon. All other matters shall be determined by the vote of a majority of the votes cast by the stockholders
present in person or represented by proxy at the meeting and entitled to vote thereon, unless the matter is one upon which, by applicable
law, the Certificate of Incorporation, these Bylaws or applicable stock exchange rules, a different vote is required, in which case such
provision shall govern and control the decision of such matter. Any stockholder directly or indirectly soliciting proxies from other stockholders
must use a proxy card color other than white, which shall be reserved for the exclusive use by the Board of Directors.
(e) Inspectors of
Election. The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons as inspectors
of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such meeting of
stockholders or any adjournment thereof and to make a written report thereof. The Board may appoint one or more persons as alternate inspectors
to replace any inspector who fails to act. If no inspectors of election or alternates are appointed by the Board, the chairman of the
meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and
sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The
inspectors shall ascertain and report the number of outstanding shares and the voting power of each; determine the number of shares present
in person or represented by proxy at the meeting and the validity of proxies and ballots; count all votes and ballots and report the results;
determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors;
and certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. No person
who is a candidate for an office at an election may serve as an inspector at such election. Each report of an inspector shall be in writing
and signed by the inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is more than
one inspector, the report of a majority shall be the report of the inspectors.
Section 2.6. Adjournments.
Any meeting of stockholders, annual or special, may be adjourned by the chairman of the meeting, from time to time, whether or not there
is a quorum, to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if the date, time, and
place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present
in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting
the stockholders, or the holders of any class or series of stock entitled to vote separately as a class, as the case may be, may transact
any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the
adjourned meeting, the Board shall fix a new record date for notice of such adjourned meeting in accordance with Section 2.3,
and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record
date fixed for notice of such adjourned meeting.
Section 2.7. Advance
Notice for Business.
(a) Annual Meetings
of Stockholders. No business may be transacted at an annual meeting of stockholders, other than business that is either (i) specified
in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii) otherwise
properly brought before the annual meeting by or at the direction of the Board or (iii) otherwise properly brought before the annual
meeting by any stockholder of the Corporation (x) who is a stockholder of record on the date of the giving of the notice provided
for in this Section 2.7(a) and on the record date for the determination of stockholders entitled to vote at such
annual meeting and (y) who complies with the notice procedures set forth in this Section 2.7(a). Except for proposals properly
made in accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and included in the notice of meeting given by or at the direction of the Board, the foregoing clause (iii) shall be the exclusive means
for a stockholder to propose business to be brought before an annual meeting of stockholders. Stockholders seeking to nominate persons
for election to the Board must comply with Section 3.2 or Rule 14a-19 promulgated under the Exchange Act,
and this Section 2.7 shall not be applicable to nominations.
(i) In
addition to any other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting by
a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary and such business must otherwise
be a proper matter for stockholder action. Subject to Section 2.7(a)(iii), a stockholder’s notice to the Secretary
with respect to such business, to be timely, must be received by the Secretary at the principal executive offices of the Corporation not
later than the close of business on the 90th day nor earlier than the opening of business on the 120th day before the anniversary date
of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is called for
a date that is not within 45 days before or after such anniversary date, notice by the stockholder to be timely must be so received
not earlier than the opening of business on the 120th day before the meeting and not later than the later of (x) the close of business
on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of
the date of the annual meeting is first made by the Corporation. The public announcement of an adjournment or postponement of an annual
meeting shall not commence a new time period for the giving of a stockholder’s notice as described in this Section 2.7(a).
(ii) To be in proper written
form, a stockholder’s notice to the Secretary with respect to any business (other than nominations) must set forth as to each such
matter such stockholder proposes to bring before the annual meeting (A) a brief description of the business desired to be brought
before the annual meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and
in the event such business includes a proposal to amend these Bylaws, the language of the proposed amendment) and the reasons for conducting
such business at the annual meeting, (B) the name and record address of such stockholder and the name and address of the beneficial
owner, if any, on whose behalf the proposal is made, (C) the class or series and number of shares of capital stock of the Corporation
that are owned beneficially and of record by such stockholder and by the beneficial owner, if any, on whose behalf the proposal is made,
(D) a description of all arrangements or understandings between such stockholder and the beneficial owner, if any, on whose behalf
the proposal is made and any other person or persons (including their names) in connection with the proposal of such business by such
stockholder, (E) any material interest of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made
in such business and (F) a representation that such stockholder intends to appear in person or by proxy at the annual meeting to
bring such business before the meeting.
(iii) The foregoing notice requirements
of this Section 2.7(a) shall be deemed satisfied by a stockholder as to any proposal (other than nominations) if
the stockholder has notified the Corporation of such stockholder’s intention to present such proposal at an annual meeting in compliance
with Rule 14a-8 (or any successor thereof) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
and such stockholder has complied with the requirements of such rule for inclusion of such proposal in a proxy statement prepared by the
Corporation to solicit proxies for such annual meeting. No business shall be conducted at the annual meeting of stockholders except business
brought before the annual meeting in accordance with the procedures set forth in this Section 2.7(a), provided, however,
that once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 2.7(a) shall
be deemed to preclude discussion by any stockholder of any such business. If the Board or the chairman of the annual meeting determines
that any stockholder proposal was not made in accordance with the provisions of this Section 2.7(a) or that the
information provided in a stockholder’s notice does not satisfy the information requirements of this Section 2.7(a),
such proposal shall not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this Section 2.7(a),
if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of the Corporation
to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such matter
may have been received by the Corporation.
(iv) In addition to the provisions
of this Section 2.7(a), a stockholder shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 2.7(a) shall
be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
(b) Special Meetings
of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special
meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only pursuant to Section 3.2.
(c) Public Announcement.
For purposes of these Bylaws, “public announcement” shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
Section 2.8. Conduct
of Meetings. The chairman of each annual and special meeting of stockholders shall be the Chairman of the Board or, in the absence
(or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the
absence (or inability or refusal to act of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President
(if he or she shall be a director) or, in the absence (or inability or refusal to act) of the President or if the President is not a director,
such other person as shall be appointed by the Board. The date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be announced at the meeting by the chairman of the meeting. The Board may adopt such
rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with
these Bylaws or such rules and regulations as adopted by the Board, the chairman of any meeting of stockholders shall have the right and
authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the
judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment
of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of
those present; (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their
duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (d) restrictions on
entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or
comments by participants. Unless and to the extent determined by the Board or the chairman of the meeting, meetings of stockholders shall
not be required to be held in accordance with the rules of parliamentary procedure. The secretary of each annual and special meeting of
stockholders shall be the Secretary or, in the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary so appointed
to act by the chairman of the meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries,
the chairman of the meeting may appoint any person to act as secretary of the meeting.
Section 2.9. Consents
in Lieu of Meeting. Except as may be otherwise provided for or fixed pursuant to the Certificate of Incorporation (including any preferred
stock designation) relating to the rights of the holders of any outstanding series of Preferred Stock, any action required or permitted
to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such stockholders and
may not be effected by written consent of the stockholders.
ARTICLE III
DIRECTORS
Section 3.1. Powers.
The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers
of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these Bylaws
required to be exercised or done by the stockholders. Directors need not be stockholders or residents of the State of Delaware.
Section 3.2. Advance
Notice for Nomination of Directors.
(a) Only persons who are nominated
in accordance with the following procedures or the procedures set forth in Rule 14a-19 promulgated under the Exchange Act,shall
be eligible for election as directors by the stockholders of the Corporation, except as may be otherwise provided by the terms of one
or more series of Preferred Stock with respect to the rights of holders of one or more series of Preferred Stock to elect directors. Nominations
of persons for election to the Board at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose
of electing directors as set forth in the Corporation’s notice of such special meeting, may be made (i) by or at the direction of
the Board, (ii) by any stockholder of the Corporation (x) who is a stockholder of record on the date of the giving of the notice provided
for in this Section 3.2 and who is entitled to vote in the election of directors at such meeting and (y) who complies
with the notice procedures set forth in this Section 3.2, or (iii) by any person who satisfies the requirements and complies
with the procedures set forth in Rule 14a-19 promulgated under the Exchange Act.
(b) In
addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder’s notice to the Secretary must comply
with the provisions of this Section 3.2(b). A stockholder’s notice must be received by the Secretary at the principal
executive offices of the Corporation (i) in the case of an annual meeting, not later than the close of business on the 90th day nor earlier
than the opening of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is called for a date that is not within 45 days before or after such
anniversary date, notice by the stockholder to be timely must be so received not earlier than the opening of business on the 120th day
before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close
of business on the 10th day following the day on which public announcement of the date of the annual meeting was first made by the Corporation;
and (ii) in the case of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business
on the 10th day following the day on which public announcement of the date of the special meeting is first made by the Corporation. In
no event shall the public announcement of an adjournment or postponement of an annual meeting or special meeting commence a new time period
for the giving of a stockholder’s notice as described in this Section 3.2.
(c) Notwithstanding anything
in paragraph (b) to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting is greater
than the number of directors whose terms expire on the date of the annual meeting and there is no public announcement by the Corporation
naming all of the nominees for the additional directors to be elected or specifying the size of the increased Board before the close of
business on the 90th day prior to the anniversary date of the immediately preceding annual meeting of stockholders, a stockholder’s
notice required by this Section 3.2 shall also be considered timely, but only with respect to nominees for the additional
directorships created by such increase that are to be filled by election at such annual meeting, if it shall be received by the Secretary
at the principal executive offices of the Corporation not later than the close of business on the 10th day following the date on which
such public announcement was first made by the Corporation.
(d) To be in proper written
form, a stockholder’s notice to the Secretary must set forth (i) as to each person whom the stockholder proposes to nominate
for election as a director (A) the name, age, business address and residence address of the person, (B) the principal occupation
or employment of the person, (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially
or of record by the person and (D) any other information relating to the person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14
of the Exchange Act and the rules and regulations promulgated thereunder; (ii) as to the stockholder giving the notice (A) the
name and record address of such stockholder and the name and address of the beneficial owner, if any, on whose behalf the nomination is
made, (B) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record
by such stockholder and the beneficial owner, if any, on whose behalf the nomination is made, (C) a description of all arrangements
or understandings relating to the nomination to be made by such stockholder among such stockholder, the beneficial owner, if any, on whose
behalf the nomination is made, each proposed nominee and any other person or persons (including their names), (D) a representation
that such stockholder intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and (E) any
other information relating to such stockholder and the beneficial owner, if any, on whose behalf the nomination is made that would be
required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election
of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be
accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected; (iii) a representation
as to whether or not the stockholder or beneficial owner, if any, or any of their respective affiliates, associates or others acting in
concert therewith intend to solicit proxies in support of director nominees other than the Corporation’s nominees in accordance
with Rule 14a-19 promulgated under the Exchange Act; and (iv) such applicable person’s consent to be named in a proxy statement
relating to such meeting of stockholders.
(e) Except as otherwise
provided by the terms of one or more series of Preferred Stock with respect to the rights of one or more series of Preferred Stock to
nominate and elect directors, no person shall be eligible for election as a director of the Corporation unless nominated in accordance
with the procedures set forth in this Section 3.2 or Rule 14a-19 promulgated under the Exchange Act. If
the Board or the chairman of the meeting of stockholders determines that any nomination was not made in accordance with the provisions
of this Section 3.2 or in accordance with Rule 14a-19 promulgated under the Exchange Act, then such nomination
shall not be considered at the meeting in question. Notwithstanding the foregoing provisions of this Section 3.2, if the stockholder
(or a qualified representative of the stockholder) does not appear at the meeting of stockholders of the Corporation to present the nomination,
such nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may have been received by the Corporation.
(f) In addition to the
provisions of this Section 3.2, a stockholder shall also comply with all of the applicable requirements of state and
federal law, including the Exchange Act, the Certificate of Incorporation and these Bylaws with respect to any nomination, proposal or
other matter set forth in this Section 3.2. Nothing in this Section 3.2 shall be deemed to affect any rights of
the holders of Preferred Stock to elect directors pursuant to the Certificate of Incorporation or the right of the Board to fill newly
created directorships and vacancies on the Board pursuant to the Certificate of Incorporation.
(g) Unless otherwise required
by law, if any stockholder or beneficial owner, if any, or any of their respective affiliates, associates (i) provides notice pursuant
to Rule 14a-19(b) promulgated under the Exchange Act or includes the information required by Rule 14a-19(b) in a preliminary or definitive
proxy statement previously filed by such person (it being understood that such notice or filing shall be in addition to all notices required
pursuant to this Section 3.2) and (ii) subsequently fails to comply with any requirements of Rule 14a-19 promulgated under the Exchange
Act or any other rules or regulations thereunder, then the Corporation shall disregard any proxies or votes solicited for such nominees
and such nomination shall be disregarded. Upon request by the Corporation, if a stockholder provides notice pursuant to Rule 14a-19(b)
promulgated under the Exchange Act or includes the information required by Rule 14a-19(b) in a preliminary or definitive proxy statement
previously filed by such stockholder, such stockholder shall deliver to the Corporation, no later than five (5) business days prior to
the applicable meeting of stockholders, reasonable evidence that it has met the requirements of Rule 14a-19(a)(3) promulgated under the
Exchange Act.
Section 3.3. Compensation.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board shall have the authority to fix the compensation
of directors. The directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board and may be paid either
a fixed sum for attendance at each meeting of the Board or other compensation as director. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees of the Board may be allowed
like compensation and reimbursement of expenses for service on the committee.
ARTICLE IV
BOARD MEETINGS
Section 4.1. Annual
Meetings. The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place of the
annual stockholders meeting unless the Board shall fix another time and place and give notice thereof in the manner required herein for
special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except as provided in this Section 4.1.
Section 4.2. Regular
Meetings. Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places as shall
from time to time be determined by the Board.
Section 4.3. Special
Meetings. Special meetings of the Board (a) may be called by the Chairman of the Board or President and (b) shall be called
by the Chairman of the Board, President or Secretary on the written request of at least a majority of directors then in office, or the
sole director, as the case may be, and shall be held at such time, date and place as may be determined by the person calling the meeting
or, if called upon the request of directors or the sole director, as specified in such written request. Notice of each special meeting
of the Board shall be given, as provided in Section 9.3, to each director (i) at least 24 hours before the meeting
if such notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of a form of electronic
transmission and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally recognized overnight
delivery service; and (iii) at least five days before the meeting if such notice is sent through the United States mail. If the Secretary
shall fail or refuse to give such notice, then the notice may be given by the officer who called the meeting or the directors who requested
the meeting. Any and all business that may be transacted at a regular meeting of the Board may be transacted at a special meeting. Except
as may be otherwise expressly provided by applicable law, the Certificate of Incorporation, or these Bylaws, neither the business to be
transacted at, nor the purpose of, any special meeting need be specified in the notice or waiver of notice of such meeting. A special
meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in
accordance with Section 9.4.
Section 4.4. Quorum;
Required Vote. A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board, and
the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may
be otherwise specifically provided by applicable law, the Certificate of Incorporation or these Bylaws. If a quorum shall not be present
at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present.
Section 4.5. Consent
In Lieu of Meeting. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all members of the Board or committee,
as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or
transmissions (or paper reproductions thereof) are filed with the minutes of proceedings of the Board or committee. Such filing shall
be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic
form.
Section 4.6. Organization.
The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the
Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to act)
of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director) or
in the absence (or inability or refusal to act) of the President or if the President is not a director, a chairman elected from the directors
present. The Secretary shall act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of the Secretary,
an Assistant Secretary shall perform the duties of the Secretary at such meeting. In the absence (or inability or refusal to act) of the
Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
Section 5.1. Establishment.
The Board may by resolution passed by a majority of the Board designate one or more committees, each committee to consist of one or more
of the directors of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when required.
The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee.
Section 5.2. Available
Powers. Any committee established pursuant to Section 5.1 hereof, to the extent permitted by applicable law
and by resolution of the Board, shall have and may exercise all of the powers and authority of the Board in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it.
Section 5.3. Alternate
Members. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified
member at any meeting of such committee.
Section 5.4. Procedures.
Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by such
committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate member, unless
such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such meeting) shall constitute
a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall
be the act of the committee, except as otherwise specifically provided by applicable law, the Certificate of Incorporation, these Bylaws
or the Board. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without
notice other than an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and except as provided
in these Bylaws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of its business. In the
absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to conduct its business
pursuant to Article III and Article IV of these Bylaws.
ARTICLE VI
OFFICERS
Section 6.1. Officers.
The officers of the Corporation elected by the Board shall be a Chairman of the Board, a Chief Executive Officer, a President, a Chief
Financial Officer, a Secretary and such other officers (including without limitation, Vice Presidents, Assistant Secretaries and a Treasurer)
as the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties as generally pertain
to their respective offices, subject to the specific provisions of this Article VI. Such officers shall also have such
powers and duties as from time to time may be conferred by the Board. The Chief Executive Officer or President may also appoint such other
officers (including without limitation one or more Vice Presidents and Controllers) as may be necessary or desirable for the conduct of
the business of the Corporation. Such other officers shall have such powers and duties and shall hold their offices for such terms as
may be provided in these Bylaws or as may be prescribed by the Board or, if such officer has been appointed by the Chief Executive Officer
or President, as may be prescribed by the appointing officer.
(a) Chairman of the
Board. The Chairman of the Board shall preside when present at all meetings of the stockholders and the Board. The Chairman of the
Board shall have general supervision and control of the acquisition activities of the Corporation subject to the ultimate authority of
the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters. In the absence (or inability
or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present
at all meetings of the stockholders and the Board. The powers and duties of the Chairman of the Board shall not include supervision or
control of the preparation of the financial statements of the Corporation (other than through participation as a member of the Board).
The position of Chairman of the Board and Chief Executive Officer may be held by the same person.
(b) Chief Executive
Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision of the
affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board, and shall be responsible
for the execution of the policies of the Board with respect to such matters, except to the extent any such powers and duties have been
prescribed to the Chairman of the Board pursuant to Section 6.1(a) above. In the absence (or inability or refusal
to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all
meetings of the stockholders and the Board. The position of Chief Executive Officer and President may be held by the same person.
(c) President.
The President shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved for
the final executive responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairman of
the Board and Chief Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings
of the stockholders and the Board. The President shall also perform such duties and have such powers as shall be designated by the Board.
The position of President and Chief Executive Officer may be held by the same person.
(d) Vice Presidents.
In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there be more than one Vice President,
the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President. Any one or more
of the Vice Presidents may be given an additional designation of rank or function.
(e) Secretary.
(i) The Secretary shall attend
all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings of such meetings
in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special
meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chairman of the Board, Chief Executive
Officer or President. The Secretary shall have custody of the corporate seal of the Corporation and the Secretary, or any Assistant Secretary,
shall have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested by his or her signature
or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing thereof by his or her signature.
(ii) The Secretary shall keep,
or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s transfer agent or
registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders and their addresses,
the number and classes of shares held by each and, with respect to certificated shares, the number and date of certificates issued for
the same and the number and date of certificates cancelled.
(f) Assistant Secretaries.
The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the Board shall, in the absence
(or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g) Chief Financial
Officer. The Chief Financial Officer shall perform all duties commonly incident to that office (including, without limitation, the
care and custody of the funds and securities of the Corporation, which from time to time may come into the Chief Financial Officer’s
hands and the deposit of the funds of the Corporation in such banks or trust companies as the Board, the Chief Executive Officer or the
President may authorize).
(h) Treasurer.
The Treasurer shall, in the absence (or inability or refusal to act) of the Chief Financial Officer, perform the duties and exercise the
powers of the Chief Financial Officer.
Section 6.2. Term
of Office; Removal; Vacancies. The elected officers of the Corporation shall be appointed by the Board and shall hold office until
their successors are duly elected and qualified by the Board or until their earlier death, resignation, retirement, disqualification,
or removal from office. Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by the Chief
Executive Officer or President may also be removed, with or without cause, by the Chief Executive Officer or President, as the case may
be, unless the Board otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled by the Board. Any
vacancy occurring in any office appointed by the Chief Executive Officer or President may be filled by the Chief Executive Officer, or
President, as the case may be, unless the Board then determines that such office shall thereupon be elected by the Board, in which case
the Board shall elect such officer.
Section 6.3. Other
Officers. The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and agents
or delegate the power to remove same, as it shall from time to time deem necessary or desirable.
Section 6.4. Multiple
Officeholders; Stockholder and Director Officers. Any number of offices may be held by the same person unless the Certificate of Incorporation
or these Bylaws otherwise provide; provided, however, that no officer shall execute, acknowledge or verify any instrument in more than
one capacity if such instrument is required by law, the Certificate of Incorporation or these Bylaws to be executed, acknowledged or verified
by two or more officers. Officers need not be stockholders or residents of the State of Delaware.
ARTICLE VII
SHARES
Section 7.1. Certificated
and Uncertificated Shares. The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion of
the Board and the requirements of the Delaware General Corporation Law (“DGCL”).
Section 7.2. Multiple
Classes of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class,
the Corporation shall (a) cause the powers, designations, preferences and relative, participating, optional or other special rights
of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights to be set forth
in full or summarized on the face or back of any certificate that the Corporation issues to represent shares of such class or series of
stock or (b) in the case of uncertificated shares, within a reasonable time after the issuance or transfer of such shares, send to
the registered owner thereof a written notice containing the information required to be set forth on certificates as specified in clause
(a) above; provided, however, that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there
may be set forth on the face or back of such certificate or, in the case of uncertificated shares, on such written notice a statement
that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions
of such preferences or rights.
Section 7.3. Signatures.
Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by (a) the Chairman
of the Board, Chief Executive Officer, the President or a Vice President and (b) the Treasurer, the Secretary or an Assistant Secretary
of the Corporation. Any or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such person
were such officer, transfer agent or registrar on the date of issue.
Section 7.4. Consideration
and Payment for Shares.
(a) Subject to applicable
law and the Certificate of Incorporation, shares of stock may be issued for such consideration, having in the case of shares with par
value a value not less than the par value thereof, and to such persons, as determined from time to time by the Board. The consideration
may consist of any tangible or intangible property or benefit to the Corporation including cash, promissory notes, services performed,
contracts for services to be performed or other securities.
(b) Subject to applicable
law and the Certificate of Incorporation, shares may not be issued until the full amount of the consideration has been paid, unless upon
the face or back of each certificate issued to represent any partly paid shares of capital stock or upon the books and records of the
Corporation in the case of partly paid uncertificated shares, there shall have been set forth the total amount of the consideration to
be paid therefor and the amount paid thereon up to and including the time said certificate representing certificated shares or said uncertificated
shares are issued.
Section 7.5. Lost,
Destroyed or Wrongfully Taken Certificates.
(a) If an owner of a certificate
representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation shall issue a new certificate
representing such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate before the Corporation
has notice that the certificate representing such shares has been acquired by a protected purchaser; (ii) if requested by the Corporation,
delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation
on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance of such new certificate or uncertificated
shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.
(b) If a certificate representing
shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation of that fact within a reasonable
time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation registers a transfer of such
shares before receiving notification, the owner shall be precluded from asserting against the Corporation any claim for registering such
transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.
Section 7.6. Transfer
of Stock.
(a) If a certificate representing
shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of transfer of such shares or
an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares, the Corporation shall
register the transfer as requested if:
(i) in the case of certificated
shares, the certificate representing such shares has been surrendered;
(ii)(A) with respect to
certificated shares, the endorsement is made by the person specified by the certificate as entitled to such shares; (B) with respect
to uncertificated shares, an instruction is made by the registered owner of such uncertificated shares; or (C) with respect to certificated
shares or uncertificated shares, the endorsement or instruction is made by any other appropriate person or by an agent who has actual
authority to act on behalf of the appropriate person;
(iii) the Corporation has received
a guarantee of signature of the person signing such endorsement or instruction or such other reasonable assurance that the endorsement
or instruction is genuine and authorized as the Corporation may request;
(iv) the transfer does not violate
any restriction on transfer imposed by the Corporation that is enforceable in accordance with Section 7.8(a); and
(v) such other conditions for
such transfer as shall be provided for under applicable law have been satisfied.
(b) Whenever any transfer
of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry of transfer
if, when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated, when the
instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request the Corporation
to do so.
Section 7.7. Registered
Stockholders. Before due presentment for registration of transfer of a certificate representing shares of the Corporation or of an
instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner as the person
exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation, vote such
shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers of the owner of
such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee on behalf of such
person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying such other conditions as are provided
under applicable law, may also so inspect the books and records of the Corporation.
Section 7.8. Effect
of the Corporation’s Restriction on Transfer.
(a) A written restriction
on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the Corporation that may be owned
by any person or group of persons, if permitted by the DGCL and noted conspicuously on the certificate representing such shares or, in
the case of uncertificated shares, contained in a notice, offering circular or prospectus sent by the Corporation to the registered owner
of such shares within a reasonable time prior to or after the issuance or transfer of such shares, may be enforced against the holder
of such shares or any successor or transferee of the holder including an executor, administrator, trustee, guardian or other fiduciary
entrusted with like responsibility for the person or estate of the holder.
(b) A restriction imposed
by the Corporation on the transfer or the registration of shares of the Corporation or on the amount of shares of the Corporation that
may be owned by any person or group of persons, even if otherwise lawful, is ineffective against a person without actual knowledge of
such restriction unless: (i) the shares are certificated and such restriction is noted conspicuously on the certificate; or (ii) the
shares are uncertificated and such restriction was contained in a notice, offering circular or prospectus sent by the Corporation to the
registered owner of such shares prior to or within a reasonable time after the issuance or transfer of such shares.
Section 7.9. Regulations.
The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of law,
as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares of stock or
certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for the validity thereof
that certificates representing shares bear the signature of any transfer agent or registrar so appointed.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Right
to Indemnification. To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation
shall indemnify and hold harmless each person who was or is made a party or is threatened to be made a party to or is otherwise involved
in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter
a “proceeding”), by reason of the fact that he or she is or was a director or officer of the Corporation or,
while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect
to an employee benefit plan (hereinafter an “Indemnitee”), whether the basis of such proceeding is alleged action
in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee
or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines,
ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such proceeding;
provided, however, that, except as provided in Section 8.3 with respect to proceedings to enforce rights to indemnification,
the Corporation shall indemnify an Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such
proceeding (or part thereof) was authorized by the Board.
Section 8.2. Right
to Advancement of Expenses. In addition to the right to indemnification conferred in Section 8.1, an Indemnitee shall
also have the right to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including, without
limitation, attorneys’ fees) incurred in defending or otherwise participating in any such proceeding in advance of its final disposition
(hereinafter an “advancement of expenses”); provided, however, that, if the DGCL requires, an advancement of
expenses incurred by an Indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in
which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made
only upon the Corporation’s receipt of an undertaking (hereinafter an “undertaking”), by or on behalf
of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified
under this Article VIII or otherwise.
Section 8.3. Right
of Indemnitee to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not paid in
full by the Corporation within 60 days after a written claim therefor has been received by the Corporation, except in the case of
a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter
bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in
a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall
also be entitled to be paid the expense of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee to enforce
a right to indemnification hereunder (but not in a suit brought by an Indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (b) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the Corporation shall be entitled to recover such expenses upon a final judicial decision from which there is no further
right to appeal (hereinafter a “final adjudication”) that, the Indemnitee has not met any applicable standard
for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such
action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement
of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard
of conduct set forth in the DGCL, nor an actual determination by the Corporation (including a determination by its directors who are not
parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the Indemnitee has not met
such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or,
in the case of such a suit brought by the Indemnitee, shall be a defense to such suit. In any suit brought by the Indemnitee to enforce
a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this Article VIII or otherwise shall be on the Corporation.
Section 8.4. Non-Exclusivity
of Rights. The rights provided to any Indemnitee pursuant to this Article VIII shall not be exclusive of any
other right, which such Indemnitee may have or hereafter acquire under applicable law, the Certificate of Incorporation, these Bylaws,
an agreement, a vote of stockholders or disinterested directors, or otherwise.
Section 8.5. Insurance.
The Corporation may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Section 8.6. Indemnification
of Other Persons. This Article VIII shall not limit the right of the Corporation to the extent and in the manner
authorized or permitted by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting the foregoing,
the Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of
expenses to any employee or agent of the Corporation and to any other person who is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan, to the fullest extent of the provisions of this Article VIII with
respect to the indemnification and advancement of expenses of Indemnitees under this Article VIII.
Section 8.7. Amendments.
Any repeal or amendment of this Article VIII by the Board or the stockholders of the Corporation or by changes in
applicable law, or the adoption of any other provision of these Bylaws inconsistent with this Article VIII, will, to
the extent permitted by applicable law, be prospective only (except to the extent such amendment or change in applicable law permits the
Corporation to provide broader indemnification rights to Indemnitees on a retroactive basis than permitted prior thereto), and will not
in any way diminish or adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to
such repeal or amendment or adoption of such inconsistent provision; provided however, that amendments or repeals of this Article
VIII shall require the affirmative vote of the stockholders holding at least 66.7% of the voting power of all outstanding shares
of capital stock of the Corporation.
Section 8.8. Certain
Definitions. For purposes of this Article VIII, (a) references to “other enterprise”
shall include any employee benefit plan; (b) references to “fines” shall include any excise taxes assessed
on a person with respect to an employee benefit plan; (c) references to “serving at the request of the Corporation”
shall include any service that imposes duties on, or involves services by, a person with respect to any employee benefit plan, its participants,
or beneficiaries; and (d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the
best interest of the Corporation” for purposes of Section 145 of the DGCL.
Section 8.9. Contract
Rights. The rights provided to Indemnitees pursuant to this Article VIII shall be contract rights and such rights
shall continue as to an Indemnitee who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the Indemnitee’s
heirs, executors and administrators.
Section 8.10. Severability.
If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Article VIII shall
not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VIII (including,
without limitation, each such portion of this Article VIII containing any such provision held to be invalid, illegal
or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Place
of Meetings. If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required under these
Bylaws is not designated in the notice of such meeting, such meeting shall be held at the principal business office of the Corporation;
provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at any place, but instead shall
be held by means of remote communication pursuant to Section 9.5 hereof, then such meeting shall not be held at
any place.
Section 9.2. Fixing
Record Dates.
(a) In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board may
fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which
record date shall not be more than 60 nor less than 10 days before the date of such meeting. If no record date is fixed by the Board,
the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business
on the business day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the business
day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at
a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for
the adjourned meeting.
(b) In order that the Corporation
may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action,
the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
Section 9.3. Means
of Giving Notice.
(a) Notice to Directors.
Whenever under applicable law, the Certificate of Incorporation or these Bylaws notice is required to be given to any director, such notice
shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery service, (ii) by means of facsimile
telecommunication or other form of electronic transmission, or (iii) by oral notice given personally or by telephone. A notice to
a director will be deemed given as follows: (i) if given by hand delivery, orally, or by telephone, when actually received by the
director, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid,
addressed to the director at the director’s address appearing on the records of the Corporation, (iii) if sent for next day
delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed
to the director at the director’s address appearing on the records of the Corporation, (iv) if sent by facsimile telecommunication,
when sent to the facsimile transmission number for such director appearing on the records of the Corporation, (v) if sent by electronic
mail, when sent to the electronic mail address for such director appearing on the records of the Corporation, or (vi) if sent by
any other form of electronic transmission, when sent to the address, location or number (as applicable) for such director appearing on
the records of the Corporation.
(b) Notice to Stockholders.
Whenever under applicable law, the Certificate of Incorporation or these Bylaws notice is required to be given to any stockholder, such
notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by a nationally recognized
overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented to by the stockholder,
to the extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL. A notice to a stockholder shall be
deemed given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if sent through the
United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the stockholder at the
stockholder’s address appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery by a nationally
recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the stockholder at the
stockholder’s address appearing on the stock ledger of the Corporation, and (iv) if given by a form of electronic transmission
consented to by the stockholder to whom the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile
transmission, when directed to a number at which the stockholder has consented to receive notice, (B) if by electronic mail, when
directed to an electronic mail address at which the stockholder has consented to receive notice, (C) if by a posting on an electronic
network together with separate notice to the stockholder of such specified posting, upon the later of (1) such posting and (2) the
giving of such separate notice, and (D) if by any other form of electronic transmission, when directed to the stockholder. A stockholder
may revoke such stockholder’s consent to receiving notice by means of electronic communication by giving written notice of such
revocation to the Corporation. Any such consent shall be deemed revoked if (1) the Corporation is unable to deliver by electronic
transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known
to the Secretary or an Assistant Secretary or to the Corporation’s transfer agent, or other person responsible for the giving of
notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
(c) Electronic Transmission.
“Electronic transmission” means any form of communication, not directly involving the physical transmission
of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced
in paper form by such a recipient through an automated process, including but not limited to transmission by telex, facsimile telecommunication,
electronic mail, telegram and cablegram.
(d) Notice to Stockholders
Sharing Same Address. Without limiting the manner by which notice otherwise may be given effectively by the Corporation to stockholders,
any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation or these Bylaws
shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that
address to whom such notice is given. A stockholder may revoke such stockholder’s consent by delivering written notice of such revocation
to the Corporation. Any stockholder who fails to object in writing to the Corporation within 60 days of having been given written
notice by the Corporation of its intention to send such a single written notice shall be deemed to have consented to receiving such single
written notice.
(e) Exceptions to
Notice Requirements. Whenever notice is required to be given, under the DGCL, the Certificate of Incorporation or these Bylaws, to
any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty
to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting that
shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if
such notice had been duly given. In the event that the action taken by the Corporation is such as to require the filing of a certificate
with the Secretary of State of Delaware, the certificate shall state, if such is the fact and if notice is required, that notice was given
to all persons entitled to receive notice except such persons with whom communication is unlawful.
Whenever notice is required to be given by the
Corporation, under any provision of the DGCL, the Certificate of Incorporation or these Bylaws, to any stockholder to whom (1) notice
of two consecutive annual meetings of stockholders and all notices of stockholder meetings or of the taking of action by written consent
of stockholders without a meeting to such stockholder during the period between such two consecutive annual meetings, or (2) all,
and at least two payments (if sent by first-class mail) of dividends or interest on securities during a 12-month period, have been mailed
addressed to such stockholder at such stockholder’s address as shown on the records of the Corporation and have been returned undeliverable,
the giving of such notice to such stockholder shall not be required. Any action or meeting that shall be taken or held without notice
to such stockholder shall have the same force and effect as if such notice had been duly given. If any such stockholder shall deliver
to the Corporation a written notice setting forth such stockholder’s then current address, the requirement that notice be given
to such stockholder shall be reinstated. In the event that the action taken by the Corporation is such as to require the filing of a certificate
with the Secretary of State of Delaware, the certificate need not state that notice was not given to persons to whom notice was not required
to be given pursuant to Section 230(b) of the DGCL. The exception in subsection (1) of the first sentence of this paragraph
to the requirement that notice be given shall not be applicable to any notice returned as undeliverable if the notice was given by electronic
transmission.
Section 9.4. Waiver
of Notice. Whenever any notice is required to be given under applicable law, the Certificate of Incorporation, or these Bylaws, a
written waiver of such notice, signed before or after the date of such meeting by the person or persons entitled to said notice, or a
waiver by electronic transmission by the person entitled to said notice, shall be deemed equivalent to such required notice. All such
waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such meeting,
except where a person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting was
not lawfully called or convened.
Section 9.5. Meeting
Attendance via Remote Communication Equipment.
(a) Stockholder Meetings.
If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders
and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:
(i) participate in a meeting
of stockholders; and
(ii) be deemed present in person
and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication,
provided that (A) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to
vote at the meeting by means of remote communication is a stockholder or proxy holder, (B) the Corporation shall implement reasonable
measures to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and, if entitled to vote,
to vote on matters submitted to the applicable stockholders, including an opportunity to read or hear the proceedings of the meeting substantially
concurrently with such proceedings, and (C) if any stockholder or proxy holder votes or takes other action at the meeting by means
of remote communication, a record of such votes or other action shall be maintained by the Corporation.
(b) Board Meetings.
Unless otherwise restricted by applicable law, the Certificate of Incorporation or these Bylaws, members of the Board or any committee
thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone or other communications equipment
by means of which all persons participating in the meeting can hear each other. Such participation in a meeting shall constitute presence
in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of
any business on the ground that the meeting was not lawfully called or convened.
Section 9.6. Dividends.
The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s
capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Certificate of Incorporation.
Section 9.7. Reserves.
The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may
abolish any such reserve.
Section 9.8. Contracts
and Negotiable Instruments. Except as otherwise provided by applicable law, the Certificate of Incorporation or these Bylaws, any
contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the Corporation by
such officer or officers or other employee or employees of the Corporation as the Board may from time to time authorize. Such authority
may be general or confined to specific instances as the Board may determine. The Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, the Treasurer or any Vice President may execute and deliver any contract, bond, deed, lease, mortgage
or other instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed by the Board, the Chairman of the
Board Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Vice President may delegate powers to execute
and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation to other officers
or employees of the Corporation under such person’s supervision and authority, it being understood, however, that any such delegation
of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.
Section 9.9. Fiscal
Year. The fiscal year of the Corporation shall be fixed by the Board.
Section 9.10. Seal.
The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise reproduced.
Section 9.11. Books
and Records. The books and records of the Corporation may be kept within or outside the State of Delaware at such place or places
as may from time to time be designated by the Board.
Section 9.12. Resignation.
Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission to the Chairman
of the Board, the Chief Executive Officer, the President or the Secretary. The resignation shall take effect at the time specified therein,
or at the time of receipt of such notice if no time is specified or the specified time is earlier than the time of such receipt. Unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 9.13. Surety
Bonds. Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board, Chief Executive Officer, President
or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the restoration to the
Corporation, in case of their death, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in their possession or under their control belonging to the Corporation, in such amounts and
by such surety companies as the Chairman of the Board, Chief Executive Officer, President or the Board may determine. The premiums on
such bonds shall be paid by the Corporation and the bonds so furnished shall be in the custody of the Secretary.
Section 9.14. Securities
of Other Corporations. Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other instruments relating
to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairman of the Board, Chief
Executive Officer, President or any Vice President. Any such officer, may, in the name of and on behalf of the Corporation, take all such
action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which
the Corporation may own securities, or to consent in writing, in the name of the Corporation as such holder, to any action by such corporation,
and at any such meeting or with respect to any such consent shall possess and may exercise any and all rights and power incident to the
ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed. The Board may from time
to time confer like powers upon any other person or persons.
Section 9.15. Amendments.
The Board shall have the power to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority of the Board shall be required
to adopt, amend, alter or repeal the Bylaws. The Bylaws also may be adopted, amended, altered or repealed by the stockholders; provided,
however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by applicable
law or the Certificate of Incorporation, the affirmative vote of the holders of at least a majority of the voting power of all outstanding
shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class,
shall be required for the stockholders to adopt, amend, alter or repeal the Bylaws.
19
Exhibit 10.2
Option Number [Option Number]
180 LIFE SCIENCES CORP.
FIRST AMENDED AND RESTATED 2022 OMNIBUS INCENTIVE
PLAN
STOCK OPTION AGREEMENT
Unless otherwise defined herein,
the terms in the Stock Option Agreement (the “Option Agreement”) have the same meanings as defined in the 180
Life Sciences Corp. First Amended and Restated 2022 Omnibus Incentive Plan (as amended from time to time)(the “Plan”).
I. | NOTICE OF STOCK OPTION GRANT |
Optionee: [Holder
Name]
Address: ___________________________________
You have been granted an Option
to purchase Company Common Stock of the Company (the “Option”), subject to the terms and conditions of the Plan
and this Option Agreement, as follows:
Grant Date: September
4, 2023
Vesting Commencement Date: September
30, 2023
Exercise Price per Share:
$0.67
Total Number of Shares
Granted: [Total Shares]
Total Exercise Price: $[Total
Exercise Price]
Type of Option: [Non-Qualified
Stock Option/Incentive Stock Option]
Expiration Date: September
4, 2033
Vesting Schedule: The
Options vest at the rate of 1/12th of such options ratably on a monthly basis over the following 12 months on the last day of each calendar
month (with the first such monthly vesting date being the Vesting Commencement Date), subject to the Optionee’s continued service
to the Company. Notwithstanding the above, all of the unvested Options shall vest immediately upon Optionee’s death or Disability,
termination of employment without cause or a termination of Optionee for good reason (each as defined and described in Optionee’s
employment agreement, or if not so defined, as determined in good faith by the Board of Directors of the Company), a Change in Control
of the Company.
To the extent vested, this
Option will be exercisable for three (3) months following the termination of service of Optionee, unless termination is due to Optionee’s
death or Disability, in which case this Option will be exercisable for twelve (12) months following the termination of service
of Optionee. In the event of termination due to Optionee’s death, the Company shall use commercially reasonable efforts to notify
Optionee’s estate of the exercisability of the Option following Optionee’s death. Notwithstanding the foregoing sentence,
in no event may this Option be exercised following the termination of service of Optionee as determined by the Company’s Board to
be for Cause or after the Expiration Date as provided above and this Option may be subject to earlier termination as provided in the Plan.
“Cause”
has the meaning ascribed to such term or words of similar import in Optionee’s written employment or service contract with the Company
or its parent or any subsidiary and, in the absence of such agreement or definition, means Optionee’s (i) conviction of, or
plea of nolo contendere to, a felony or any other crime involving moral turpitude; (ii) fraud on or misappropriation of any funds
or property of the Company or its subsidiaries, or any affiliate, customer or vendor; (iii) personal dishonesty, incompetence, willful
misconduct, willful violation of any law, rule or regulation (other than minor traffic violations or similar offenses), or breach of fiduciary
duty which involves personal profit; (iv) willful misconduct in connection with Optionee’s duties or willful failure to perform
Optionee’s responsibilities in the best interests of the Company or its subsidiaries; (v) illegal use or distribution of drugs;
(vi) violation of any material rule, regulation, procedure or policy of the Company or its subsidiaries, the violation of which could
have a material detriment to the Company; or (vii) material breach of any provision of any employment, non-disclosure, non-competition,
non-solicitation or other similar agreement executed by Optionee for the benefit of the Company or its subsidiaries, all as reasonably
determined by the Company’s Board of Directors, which determination will be conclusive.
Legends.
(a) All
certificates representing the Shares issued upon exercise of this Option shall, prior to such date as the Plan and Company Common Stock
hereunder are covered by a valid Form S-8 or similar U.S. federal registration statement, where applicable, have endorsed thereon the
following legend:
THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS
OF U.S. FEDERAL, STATE AND FOREIGN SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION AND QUALIFICATION UNDER U.S. FEDERAL, STATE AND FOREIGN SECURITIES LAWS IS NOT REQUIRED.
First Amended and Restated 2022 Omnibus Plan Stock Option Agreement
Option Number [Option Number]
Page 2 of 12
(b) If
the Option is an incentive stock option (ISO), then the following legend will be included:
THE SHARES
REPRESENTED BY THIS CERTIFICATE WERE ISSUED UPON EXERCISE OF AN INCENTIVE STOCK OPTION, AND THE COMPANY MUST BE NOTIFIED IF THE SHARES
SHALL BE TRANSFERRED BEFORE THE LATER OF THE TWO (2) YEAR ANNIVERSARY OF THE DATE OF GRANT OF THE OPTION OR THE ONE (1) YEAR ANNIVERSARY
OF THE DATE ON WHICH THE OPTION WAS EXERCISED. THE REGISTERED HOLDER MAY RECOGNIZE ORDINARY INCOME IF THE SHARES ARE TRANSFERRED BEFORE
SUCH DATE.
1. Grant of Option.
The Administrator grants to the Optionee named in the Notice of Stock Option Grant in Part I of this Option Agreement,
an Option to purchase the number of Shares set forth in the Notice of Stock Option Grant, at the exercise price per Share set forth in
the Notice of Stock Option Grant (the “Exercise Price”), and subject to the terms and conditions of the Plan,
which is incorporated herein by reference. In the event of a conflict between the terms and conditions of the Plan and this Option Agreement,
the terms and conditions of the Plan prevail.
If designated in the Notice
of Stock Option Grant as an Incentive Stock Option, this Option is intended to qualify as an Incentive Stock Option as defined in Code
section 422. Nevertheless, to the extent that it exceeds the $100,000 rule of Code section 422(d), this Option will be treated
as a Nonstatutory/Non-Qualified Stock Option.
2. Exercise of Option.
(a) Right to Exercise.
This Option is exercisable during its term in accordance with the Vesting Schedule set out in the Notice of Stock Option Grant and with
the applicable provisions of the Plan and this Option Agreement.
(b) Method of Exercise.
This Option is exercisable by (i) delivery of an exercise notice in the form attached as Exhibit A (the “Exercise
Notice”) or in a manner and pursuant to procedures as the Administrator may determine, which will state the election to
exercise the Option, the number of Shares with respect to which the Option is being exercised, and other representations and agreements
as may be required by the Company and (ii) paying the Company in full the aggregate Exercise Price as to all Shares being acquired, together
with any applicable tax withholding.
First Amended and Restated 2022 Omnibus Plan Stock Option Agreement
Option Number [Option Number]
Page 3 of 12
This Option will be deemed to
be exercised upon receipt by the Company of a fully executed Exercise Notice accompanied by the aggregate Exercise Price, together with
any applicable tax withholding.
No Shares will be issued pursuant
to the exercise of an Option unless the issuance and exercise of Shares complies with applicable state and federal laws (“Applicable
Laws”). Assuming compliance, for income tax purposes the Shares will be considered transferred to the Optionee on the date
on which the Option is exercised with respect to the Shares.
3. Method of Payment.
The aggregate Exercise Price may be paid by any of the following, or a combination thereof, at the election of the Optionee:
(a) cash;
(b) check;
(c) to the extent not prohibited
by Section 402 of the Sarbanes-Oxley Act of 2002, a promissory note;
(d) other shares of Company
Common Stock, provided Shares have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as
to which said Option will be exercised;
(e) by asking the Company to
withhold Shares from the total Shares to be delivered upon exercise equal to the number of Shares having a value equal to the aggregate
Exercise Price of the Shares being acquired;
(f) any combination of the foregoing
methods of payment; or
(g) such other consideration
and method of payment for the issuance of Shares to the extent permitted by Applicable Laws.
4. Restrictions on
Exercise. This Option may not be exercised if the issuance of such Shares upon such exercise or the method of payment of consideration
for such shares would constitute a violation of any Applicable Laws. The Company will be relieved of any liability with respect to any
delayed issuance of shares or its failure to issue shares if such delay or failure is necessary to comply with Applicable Laws.
5. Non-Transferability
of Option. This Option may not be transferred in any manner otherwise than by will or by the laws of descent or distribution and may
be exercised during the lifetime of Optionee only by Optionee. The terms of the Plan and this Option Agreement are binding upon the executors,
administrators, heirs, successors and assigns of the Optionee.
First Amended and Restated 2022 Omnibus Plan Stock Option Agreement
Option Number [Option Number]
Page 4 of 12
6. Term of Option.
This Option may be exercised only within the term set out in the Notice of Stock Option Grant, and may be exercised during the term only
in accordance with the Plan and the terms of this Option.
7. Tax Obligations.
(a) Withholding Taxes.
Optionee agrees to arrange for the satisfaction of all Federal, state, local and foreign income and employment tax withholding requirements
applicable to the Option exercise. Optionee acknowledges and agrees that the Company may refuse to honor the exercise and refuse to deliver
the Shares if withholding amounts are not delivered at the time of exercise.
(b) Notice of Disqualifying
Disposition of ISO Shares. If the Option granted to Optionee is an Incentive Stock Option (“ISO”), and if
Optionee sells or otherwise disposes of any of the Shares acquired pursuant to the ISO on or before the later of (i) the date two
(2) years after the Grant Date, or (ii) the date one (1) year after the date of exercise, the Optionee must immediately notify the
Company of the disposition in writing. Optionee agrees that Optionee may be subject to income tax withholding by the Company on the compensation
income recognized by the Optionee.
(c) Code Section 409A.
Under Code section 409A, an Option that was granted with a per Share exercise price that is determined by the Internal Revenue Service
(the “IRS”) to be less than the Fair Market Value of a Share on the Grant Date (a “discount option”)
may be considered deferred compensation. An Option that is a discount option may result in (i) income recognition by the Optionee prior
to the exercise of the Option, (ii) an additional twenty percent (20%) tax, and (iii) potential penalty and interest charges. Optionee
acknowledges that the Company cannot and has not guaranteed that the IRS will agree that the per Share Exercise Price of this Option equals
or exceeds Fair Market Value of a Share on the Grant Date in a later examination. Optionee agrees that if the IRS determines that the
Option was granted with a per Share exercise price that was less than the Fair Market Value of a Share on the Grant Date, Optionee will
be solely responsible for any and all resulting tax consequences.
8. No Guarantee of Continued
Service. OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING
AS AN EMPLOYEE AND/OR DIRECTOR (AS APPLICABLE) AT THE WILL OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING OR RETAINING OPTIONEE)
AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES HEREUNDER. OPTIONEE FURTHER ACKNOWLEDGES AND AGREES
THAT THIS OPTION AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS
OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN EMPLOYEE AND/OR DIRECTOR (AS APPLICABLE) FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT
ALL, AND WILL NOT INTERFERE IN ANY WAY WITH OPTIONEE’S RIGHT OR THE RIGHT OF THE COMPANY (OR THE PARENT OR SUBSIDIARY EMPLOYING
OR RETAINING OPTIONEE) TO TERMINATE OPTIONEE’S RELATIONSHIP AS AN EMPLOYEE OR DIRECTOR AT ANY TIME, WITH OR WITHOUT CAUSE.
First Amended and Restated 2022 Omnibus Plan Stock Option Agreement
Option Number [Option Number]
Page 5 of 12
9. Notices. All notices
or other communications which are required or permitted hereunder will be in writing and sufficient if (i) personally delivered or sent
by telecopy, (ii) sent by nationally-recognized overnight courier or (iii) sent by registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
(a) if to the Optionee, to the
address (or telecopy number) set forth on the Notice of Stock Option Grant; and
(b) if to the Company, to its
principal executive office as specified in any report filed by the Company with the Securities and Exchange Commission or to such address
as the Company may have specified to the Optionee in writing, Attention: Corporate Secretary;
or to any other address as the
party to whom notice is to be given may have furnished to the other party in writing in accordance herewith. Any communication will be
deemed to have been given (i) when delivered, if personally delivered, or when telecopied, if telecopied, (ii) on the first Business Day
(as hereinafter defined) after dispatch, if sent by nationally-recognized overnight courier and (iii) on the fourth Business Day following
the date on which the piece of mail containing the communication is posted, if sent by mail. As used herein, “Business Day”
means a day that is not a Saturday, Sunday or a day on which banking institutions in the city to which the notice or communication is
to be sent are not required to be open.
10. Specific Performance.
Optionee expressly agrees that the Company will be irreparably damaged if the provisions of this Option Agreement and the Plan are not
specifically enforced. Upon a breach or threatened breach of the terms, covenants and/or conditions of this Option Agreement or the Plan
by the Optionee, the Company will, in addition to all other remedies, be entitled to a temporary or permanent injunction, without showing
any actual damage, and/or decree for specific performance, in accordance with the provisions hereof and thereof. The Administrator has
the power to determine what constitutes a breach or threatened breach of this Option Agreement or the Plan. The Administrator’s
determinations will be final and conclusive and binding upon the Optionee.
11. No Waiver. No waiver
of any breach or condition of this Option Agreement will be deemed to be a waiver of any other or subsequent breach or condition, whether
of like or different nature.
First Amended and Restated 2022 Omnibus Plan Stock Option Agreement
Option Number [Option Number]
Page 6 of 12
12. Optionee Undertaking.
The Optionee agrees to take whatever additional actions and execute whatever additional documents the Company may in its reasonable judgment
deem necessary or advisable in order to carry out or effect one or more of the obligations or restrictions imposed on the Optionee pursuant
to the express provisions of this Option Agreement.
13. Modification of Rights.
The rights of the Optionee are subject to modification and termination in certain events as provided in this Option Agreement and the
Plan.
14. Governing Law.
This Agreement is governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to its conflict
or choice of law principles that might otherwise refer construction or interpretation of this Agreement to the substantive law of another
jurisdiction.
15. Counterparts; Facsimile
Execution. This Option Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but
all of which together constitute one and the same instrument. Facsimile execution and delivery of this Option Agreement is legal, valid
and binding execution and delivery for all purposes.
16. Entire Agreement.
The Plan, this Option Agreement, and upon execution, the Exercise Notice, constitute the entire agreement of the parties with respect
to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and Optionee with respect
to the subject matter hereof, and may not be modified adversely to the Optionee’s interest except by means of a writing signed by
the Company and Optionee.
17. Severability. In
the event one or more of the provisions of this Option Agreement should, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability will not affect any other provisions of this Option Agreement, and this
Option Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
18. WAIVER OF JURY TRIAL.
THE OPTIONEE EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS OPTION
AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
[Remainder of page left intentionally blank.]
First Amended and Restated 2022 Omnibus Plan Stock Option Agreement
Option Number [Option Number]
Page 7 of 12
Optionee acknowledges receipt
of a copy of the Plan and represents that he or she is familiar with the terms and provisions thereof, and accepts this Option subject
to all of the terms and provisions thereof. Optionee has reviewed the Plan and this Option in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Option and fully understands all provisions of the Option. Optionee agrees to accept
as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under the Plan or this
Option. Optionee further agrees to notify the Company upon any change in the residence address indicated below.
OPTIONEE |
|
180 LIFE SCIENCES CORP. |
|
|
|
Signature |
________________
|
|
By: |
________________
|
|
|
|
Print Name: |
«Holder_Name» |
|
Print Name: |
________________
|
|
|
|
Address: |
________________
________________ |
|
Address: |
________________
________________
________________ |
|
|
|
Date Signed: |
________________
|
|
Date Signed: |
________________
|
First Amended and Restated 2022 Omnibus Plan Stock Option Agreement
Option Number [Option Number]
Page 8 of 12
EXHIBIT A
FIRST AMENDED AND RESTATED 2022 OMNIBUS INCENTIVE
PLAN
EXERCISE NOTICE
180 Life Sciences Corp.
3000 El Camino Real, Bldg. 4, Suite 200
Palo Alto, California 94306
Attention: 180 Life Sciences Corp., Corporate
Secretary
1. Exercise
of Option. Effective as of today, _____________, _____, «Holder_Name» (“Optionee”) elects
to exercise Optionee’s option to purchase ___________ shares of the Company Common Stock (the
“Shares”) of 180 Life Sciences Corp. (the “Company”) under and pursuant to the
180 Life Sciences Corp. First Amended and Restated 2022 Omnibus Incentive Plan (as amended from time to time, the
“Plan”) and the Stock Option Agreement effective September 4, 2023 (the “Option
Agreement”).
2. Delivery
of Payment. Optionee herewith delivers to the Company the full purchase price of the Shares, as set forth in the Option Agreement,
and any and all withholding taxes due in connection with the exercise of the Option.
3. Representations
of Optionee. Optionee acknowledges that Optionee has received, read and understood the Plan and the Option Agreement and agrees to
abide by and be bound by their terms and conditions.
4. Rights
as Stockholder. Until the issuance of the Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized
transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder exists with respect to the
Optioned Stock, notwithstanding the exercise of the Option. Subject to the requirements of Section 6 below, the Shares
will be issued to the Optionee as soon as practicable after the Option is exercised in accordance with the Option Agreement. No adjustment
will be made for a dividend or other right for which the record date is prior to the date of issuance except as provided in the Plan.
5. Tax
Consultation. Optionee understands that Optionee may suffer adverse tax consequences as a result of Optionee’s purchase or disposition
of the Shares. Optionee represents that Optionee has consulted with any tax consultants Optionee deems advisable in connection with the
purchase or disposition of the Shares and that Optionee is not relying on the Company for any tax advice.
6. Refusal
to Transfer. The Company will not (i) transfer on its books any Shares that have been sold or otherwise transferred in violation of
any of the provisions of this Exercise Notice, or (ii) be required to treat as owner of such Shares or to accord the right to vote or
pay dividends to any purchaser or other transferee to whom such Shares have been so transferred.
First Amended and Restated 2022 Omnibus Plan Stock Option Agreement
Option Number [Option Number]
Page 9 of 12
7. Successors
and Assigns. The Company may assign any of its rights under this Exercise Notice to single or multiple assignees, and this Exercise
Notice inures to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth, this
Exercise Notice is binding upon Optionee and his or her heirs, executors, administrators, successors and assigns.
8. Interpretation.
Any dispute regarding the interpretation of this Exercise Notice will be submitted by Optionee or by the Company forthwith to the Administrator
for review at its next regular meeting. The resolution of disputes by the Administrator will be final and binding on all parties.
9. Governing
Law; Severability. This Exercise Notice is governed by, and construed in accordance with, the laws of the State of Delaware, without
giving effect to its conflict or choice of law principles that might otherwise refer construction or interpretation of this Exercise to
the substantive law of another jurisdiction. In the event that any provision hereof becomes or is declared by a court of competent jurisdiction
to be illegal, unenforceable or void, this Exercise Notice will continue in full force and effect.
10. Optionee Representations.
(a) With
respect to a transaction occurring prior to such date as the Plan and Company Common Stock thereunder are covered by a valid Form S-8
or similar U.S. federal registration statement, Optionee agrees that in no event shall Optionee make a disposition of any of the Company
Common Stock, unless and until: (i) Optionee shall have notified the Company of the proposed disposition and shall have furnished the
Company with a statement of the circumstances surrounding the proposed disposition; and (ii) Optionee shall have furnished the Company
with an opinion of counsel satisfactory to the Company to the effect that (A) such disposition will not require registration or qualification
of such Company Common Stock under applicable U.S. federal, state or foreign securities laws or (B) appropriate action necessary for compliance
with the U.S. federal, state or foreign securities laws has been taken; or (iii) the Company shall have waived, expressly and in writing,
its rights under clauses (i) and (ii) of this Subsection.
(b) Optionee
understands that if a registration statement covering the Company Common Stock under the Securities Act is not in effect when Optionee
desires to sell the Company Common Stock, Optionee may be required to hold the Company Common Stock for an indeterminate period. Optionee
also acknowledges that Optionee understands that any sale of the Company Common Stock which might be made by Optionee in reliance upon
Rule 144 under the Securities Act may be made only in limited amounts in accordance with the terms and conditions of that Rule.
First Amended and Restated 2022 Omnibus Plan Stock Option Agreement
Option Number [Option Number]
Page 10 of 12
11. Other
Documents. Optionee hereby acknowledges receipt or the right to receive a document providing the information required by Rule 428(b)(1)
promulgated under the Securities Act of 1933, as amended, including, but not limited to, the information required by Part I of Form S-8,
if applicable.
12. Notices.
Any notice required or permitted hereunder will be provided in writing and deemed effective if provided in the manner specified in the
Option Agreement.
13. Further
Instruments. The parties agree to execute any further instruments and to take any further action as may be reasonably necessary to
carry out the purposes and intent of the Option Agreement and this Exercise Notice.
14. Entire
Agreement. The Plan and Option Agreement are incorporated herein by reference. This Exercise Notice, the Plan, and the Option Agreement
constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings
and agreements of the Company and Optionee with respect to the subject matter hereof, and may not be modified adversely to the Optionee’s
interest except by means of a writing signed by the Company and Optionee.
[Signature page follows.]
First Amended and Restated 2022 Omnibus Plan Stock Option Agreement
Option Number [Option Number]
Page 11 of 12
Submitted by: |
|
Accepted by:
|
OPTIONEE |
|
180 LIFE SCIENCES CORP. |
|
|
|
Signature________________
|
|
By: ________________
|
|
|
|
Print Name: [Holder Name]
|
|
Print Name: ________________
|
|
|
|
Address: ________________
|
|
|
|
|
|
|
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Date Received: ________________
|
First Amended and Restated 2022 Omnibus Plan Stock
Option Agreement
Option Number [Option Number]
Page 12 of 12
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Entity File Number |
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Entity Registrant Name |
180
LIFE SCIENCES CORP.
|
Entity Central Index Key |
0001690080
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Entity Tax Identification Number |
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DE
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Alto
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