PROPOSAL
5
APPROVAL OF AMENDMENT TO OUR CERTIFICATE OF INCORPORATION
TO
EFFECT
A FORWARD STOCK SPLIT
General
Our
board unanimously adopted resolutions approving the Forward Split and directed that our Second Amended and Restated Certificate
of Incorporation be amended to effectuate the Forward Split. If the stockholders approve the proposal, the Company will file an
amendment (“Amendment”) to our Second Amended and Restated Certificate of Incorporation, substantially in the form
as Appendix B, with the Secretary of State of the State of Delaware as soon as practicable.
Purpose
Our
Board of Directors believes that it is necessary and prudent for the Company to amend our current Certificate of Incorporation
to effect the Forward Split. Our Board regularly evaluates the effect of the trading price of our Common Stock on the liquidity
and marketability of our Common Stock and believes the current trading price has made our Common Stock less affordable and, therefore,
not so attractive to broader investor base. The Board believes that effecting the Forwrd Split would make our shares more affordable
and attractive to a broader group of potential investors, increase liquidity in the trading of our Common Stock and increase the
attractiveness of our employee equity awards.
Effect
of the Forward Split
The
principal effect of the Forward Split will be the increase in the number of shares of Common Stock issued and outstanding from
approximately [ ] shares as of the Record Date, to approximately [ ] shares immediately upon the effectiveness of the Forward
Split. The Forward Split will affect all of our stockholders uniformly and will not affect any stockholder's percentage ownership
interest in the Company or proportionate voting power. The Common Stock issued pursuant to the Forward Split will remain fully
paid and non-assessable. The Forward Split shall not affect any rights, privileges or obligations with respect to the shares of
Common Stock existing prior to the Forward Split, nor does it increase or decrease the market capitalization of the Company. The
Forward Split is not intended as, and will not have the effect of, a "going private transaction" under Rule 13e-3 of
the Exchange Act. We will continue to be subject to the periodic reporting requirements of the Exchange Act.
Following
the Forward Split, the Company’s outstanding and authorized capital stock will be as follows:
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Common
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Stock
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Authorized
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but
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Unissued
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and
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Outstanding
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Outstanding
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Authorized
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Authorized
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Authorized
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Available
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Common
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Preferred
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Common
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Preferred
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Capital
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for Future
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Stock
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Stock
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Stock
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Stock
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Stock
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Issuance
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Pre-Forward Split as of April [ ], 2018
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-
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Post 2-for-1 Forward Split
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There
will not be any dilution in the percentage ownership of our current shareholders as a result of the Forward Split. The total authorized
number of shares of our Common Stock will not change. Accordingly, our current shareholders will be diluted to the extent that
their percentage ownership relative to the number of authorized and issued and unissued shares of our Common Stock will decrease
significantly. While we do not currently have any current plans, proposals or arrangement, written or otherwise, to issue additional
shares of our Common Stock, the possibility that our shareholders will be diluted in the future nonetheless exists.
The
Forward Split may decrease the number of our shareholders who own “odd lots” of less than 100 shares of our Common
Stock. Brokerage commissions and other costs of transactions in odd lots are generally higher than the costs of transactions of
more than 100 shares of Common Stock.
As
discussed below under “Accounting Consequences,” upon the effective date of the Forward Split, the stated capital
on our balance sheet attributable to the Common Stock will be divided by the denominator of the split ratio, and the additional
paid-in capital will be credited with the amount by which the stated capital is reduced.
Effect
of the Forward Split on Warrants
The
number of shares subject to our outstanding Common Stock warrants will automatically be increased in the 2-for-1 ratio.
Effect
on the Equity Plans and Outstanding Equity Awards
The
Forward Split will proportionately increase the number of shares of Common Stock available for issuance under the Company’s
equity plans. Under the terms of our outstanding equity awards, the Forward Split will cause a proportionate increase in the number
of shares of Common Stock issuable upon exercise or vesting of such awards and will cause a proportionate decrease in the exercise
price of such awards.
Exchange
of Stock Certificates
The
combination of, and reduction in, the number of our outstanding shares of Common Stock as a result of the Forward Split will occur
automatically upon the filing of a certificate of amendment without any action on the part of our shareholders and without regard
to the date that stock certificates representing the shares prior to the Forward Split are physically surrendered for new stock
certificates.
As
soon as practicable after the filing of a certificate of amendment, transmittal forms will be mailed to each holder of record
of certificates for shares of our Common Stock to be used in forwarding such certificates for surrender and exchange for certificates
representing the number of shares of our Common Stock such shareholder is entitled to receive as a result of the Forward Split.
Our transfer agent will act as exchange agent for purposes of implementing the exchange of the stock certificates. The transmittal
forms will be accompanied by instructions specifying other details of the exchange. Upon receipt of such transmittal form, each
shareholder should surrender the certificates representing shares of our Common Stock prior to the Forward Split in accordance
with the applicable instructions. Each holder who surrenders certificates will receive new certificates representing the number
of shares of our Common Stock that he or she holds as a result of the Forward Split. No new certificates will be issued to a shareholder
until the shareholder has surrendered its outstanding certificate(s) together with the properly completed and executed transmittal
form to the exchange agent. Shareholders should not send in their stock certificates until they receive a transmittal form from
our transfer agent.
Accounting
Consequences
The
par value of Common Stock will be unchanged at $0.0001 per share after the Forward Split. As a result, on the effective date of
the Forward Split, the shareholders equity on our balance sheet attributable to the Company’s Common Stock will be increased
proportionately based on the forward stock split ratio of 2-for-1.
After
the stock split, net income or loss per share, and other per share amounts will be reduced as there will be more shares of our
Common Stock outstanding. In future financial statements, net income or loss per share and other per share amounts for periods
ending before the forward stock split will be re-presented to give retroactive effect to the Forward Split.
Material
Tax Consequences
The
following summary of certain material federal income tax consequences of the Forward Split does not purport to be a complete discussion
of all of the possible federal income tax consequences and is included for general information only, is not intended as tax advice
to any person and is not a comprehensive description of the tax consequences that may be relevant to each stockholder’s
own particular circumstances. Further, it does not address any state, local, foreign or other income tax consequences, nor does
it address the tax consequences to stockholders that are subject to special tax rules, such as stockholders who are subject to
the alternative minimum tax, banks, insurance companies, regulated investment companies, personal holding companies, shareholders
who are not “United States persons” as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended
(the “Code”), broker-dealers and tax-exempt entities. This summary is based on the Code, the Treasury regulations
thereunder and proposed regulations, court decisions and current administrative rulings and pronouncements of the Internal Revenue
Service (“IRS”), all of which are subject to change, possibly with retroactive effect, and assumes that the shares
of Common Stock will be held as a “capital asset” (generally, property held for investment) as defined in the Code.
Holders
of Common Stock are advised to consult their own tax advisers regarding the federal income tax consequences of the proposed Forward
Split in light of their personal circumstances and the consequences under state, local and foreign tax laws. The Board of Directors
believes that the Forward Split will qualify as a recapitalization described in Section 368(a)(1)(E) of the Code. Accordingly,
no gain or loss will be recognized by the Company in connection with the Forward Split. No gain or loss will be recognized by
a stockholder who exchanges all of his shares of pre-forward Common Stock solely for shares of post-forward Common Stock. The
aggregate basis of the shares of the Common Stock to be received in the Forward Split will be the same as the aggregate basis
of the shares of Common Stock surrendered in exchange therefor. The holding period of the shares of Common Stock to be received
in the Forward Split will include the holding period of the shares of Common Stock surrendered in exchange therefor.
Our
views regarding the tax consequences of the Forward Split are not binding upon the IRS or the courts, and there is no assurance
that the IRS or the courts would accept the positions expressed above. The state and local tax consequences of the Forward Split
may vary significantly as to each stockholder, depending on the state in which such stockholder resides. EACH STOCKHOLDER IS URGED
TO CONSULT WITH ITS OWN TAX ADVISERS REGARDING THE TAX CONSEQUENCES OF THE FORWARD SPLIT IN LIGHT OF ITS OWN PARTICULAR CIRCUMSTANCES.
Reservation
of Right to Abandon Stock Split
We
reserve the right to not file the Amendment and to abandon the Forward Split without further action by our stockholders at any
time before the effectiveness of the filing of the Amendment with the Secretary of State of the State of Delaware, even if the
authority to effect the Amendment is approved by our stockholders at the Meeting. By voting in favor of the Amendment, you are
expressly also authorizing the Board to delay, not proceed with, and abandon, the proposed Amendment if it should so decide, in
its sole discretion, that such action is in the best interests of the Company and its stockholders.
Potential
Adverse Effects of the Foward Split
Future
issuances of Common Stock or securities convertible into Common Stock could have a dilutive effect on our earnings per share,
book value per share and the voting power and interest of current stockholders. In addition, the availability of additional shares
of Common Stock for issuance could, under certain circumstances, discourage or make more difficult any efforts to obtain control
of the Company. The Board is not aware of any attempt, or contemplated attempt, to acquire control of the Company, nor is this
proposal being presented with the intent that it is used to prevent or discourage any acquisition attempt. However, nothing would
prevent the Board from taking any such actions that it deems to be consistent with its fiduciary duties.
No
Appraisal Rights
Under
the Delaware General Corporation Law, our stockholders are not entitled to appraisal rights with respect to the Amendment and
the proposed Foward Split.
Vote
Required and Board of Directors’ Recommendation
Approval
of this Proposal 5 requires the affirmative vote of the holders of a majority of the outstanding shares of our Common Stock present
in person or represented by proxy and entitled to vote at the Meeting. Adoption of the Forward Split proposal is conditioned upon
the adoption of Capital Increase proposal,
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” APPROVAL OF AMENDMENT TO EFFECT THE FORWARD SPLIT.
PROPOSAL
6
APPROVAL OF AMENDMENT TO OUR CERTIFICATE OF INCORPORATION
TO
EFFECT
THE CAPITAL INCREASE
General
Our
Board of Directors has approved, subject to stockholder approval, an amendment to our Certificate of Incorporation (the “Common
Shares Increase Amendment”) to increase the number of authorized shares of the Company’s common stock from 11,000,000
to 22,000,000. The Company expects to increase the authorized shares after it effectuates the Reverse/Forward Split proposed in
Proposal 1.
If
the Common Shares Increase Amendment is approved by our stockholders, we intend to file the Amendment with the Secretary of State
of Delaware, substantially in the form of Appendix E hereto are approved by stockholders, we may file a single amendment for both
Capital Increase and Forward Split) with the Secretary of State of Delaware as soon as practicable following receipt of stockholders
approval.
Purpose
of the Proposal
Our
Certificate of Incorporation currently authorizes us to issue a maximum of 11,000,000 shares of common stock, par value $0.0001
per share. As of the Record Date on, there are [ ] shares of common stock issued and outstanding, warrants to purchase 5,250,000
shares of common stock at an exercise price of $11.50 per share exercisable March 6, 2018 and expiring February 5, 2023 and outstanding
and options to acquire 12,000 shares of common stock at a price of $9.79 per share exercisable commencing August 6, 2018 and expiring
February 5, 2023.
If
approved, the Forward Split will significantly increase the number of shares of Common Stock outstanding and Common Stock reserved
for issuance, thus necessitating an increase in the number of authorized shares of the Company.
Therefore,
our Board believes it is in our best interests to increase the number of authorized shares of Common Stock to along with the Forward
Split.
The Board considers it necessary to
increase the authorized capital stock
to ensure that the Company has sufficient shares available for general corporate purposes
including, without limitation, acquisitions, establishing strategic partnerships, equity financings, providing equity incentives
to employees, and payments of stock dividends, additional stock splits and other recapitalizations. From time to time the Company
considers these types of transactions as market conditions or other opportunities arise.
Effects
of the Capital Increase
The
additional shares of common stock will have the same rights as the presently authorized shares, including the right to cast one
vote per share of common stock. Although the authorization of additional shares will not, in itself, have any effect on the rights
of any holder of our common stock, the future issuance of additional shares of common stock (other than by way of a stock split
or dividend) would have the effect of diluting the voting rights and could have the effect of diluting earnings per share and
book value per share of existing stockholders.
The
Board of Directors has no present plans to issue the additional shares of common stock to be authorized by the Capital Increase
Amendment. However, it is possible that some of these additional shares could be used in the future for various other purposes
without further stockholder approval, except as such approval may be required in particular cases by our charter documents, applicable
law or the rules of any stock exchange or other market on which our securities may then be listed. These purposes may include:
raising capital, providing equity incentives to employees, officers or directors, establishing strategic relationships with other
companies, and expanding the Company’s business or product lines through the acquisition of other businesses or products.
We
could also use the additional shares of common stock that will become available pursuant to the Capital Increase Amendment to
oppose a hostile takeover attempt or to delay or prevent changes in control or management of the Company. Although the proposal
to increase the authorized common stock has not been prompted by the threat of any hostile takeover attempt (nor is the Board
currently aware of any such attempts directed at the Company), nevertheless, stockholders should be aware that the Capital Increase
Amendment could facilitate future efforts by us to deter or prevent changes in control of the Company, including transactions
in which stockholders of the Company might otherwise receive a premium for their shares over then current market prices. However,
the Board of Directors has a fiduciary duty to act in the best interests of the Company’s stockholders at all times.
Vote
Required and Board of Directors’ Recommendation
Approval
of this Proposal 6 requires the affirmative vote of the holders of a majority of the outstanding shares of our Common Stock present
in person or represented by proxy and entitled to vote at the Meeting. Adoption of the Capital Increase proposal is conditioned
upon the adoption of Forward Split proposal,
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” APPROVAL OF AMENDMENT TO EFFECT THE CAPITAL INCREASE.
PROPOSAL
6
APPROVAL
OF THE RE-DOMICILE AND THE MERGER
Our
Board of Directors has adopted resolutions, subject to stockholder approval, to change the Company’s state of incorporation
from Delaware to Nevada (the “Re-domicile”). In order to accomplish the Re-domicile, the Company will merge with and
into a corporation to be incorporated in Nevada as a wholly owned subsidiary of the Company specifically for that purpose under
the name “TMSR Holding Company Limited.” (“
TMSR-NV
”). Pursuant to the terms of the Agreement
and Plan of Merger, TMSR-NV will be the surviving corporation and the issued and outstanding shares of our Common Stock will automatically
be converted into shares of TMSR-NV’s Common Stock, par value $[ ] per share, at the rate of one share of our Common Stock
for each one share of our TMSR-NV common stock (such transaction, is referred herein as the “Merger”). The form of
the Agreement and Plan of Merger is attached to this Proxy Statement as
Appendix C
. Upon completion of the Merger, the
Certificate of Incorporation and Bylaws of TMSR-NV will become our governing instruments and will differ in some respects from
our current Certificate of Incorporation and Bylaws, as more thoroughly discussed below.
Reasons
for the Re-domicile
Nevada
is a nationally-recognized leader in adopting and implementing comprehensive and flexible corporation laws that are frequently
revised and updated to accommodate changing legal and business needs. In light of our growth, our Board of Directors believes
that it will be beneficial to the Company and its stockholders to obtain the benefits of Nevada’s corporation laws. Nevada
courts have developed considerable expertise in dealing with corporate legal issues and have produced a substantial body of case
law construing Nevada corporation laws. Because the judicial system is based largely on legal precedents, the abundance of Nevada
case law should serve to enhance the relative clarity and predictability of many areas of corporation law, and allow our Board
of Directors and management to make business decisions and take corporate actions with greater assurance as to the validity and
consequences of such decisions and actions.
In
addition, we anticipate that the Re-domicile will result in a reduced state tax obligations, as Nevada currently imposes no corporate
income or franchise tax, while Delaware imposes an annual franchise tax, ranging from a nominal amount to a maximum of $180,000.
Our franchise tax obligation for 2017 was the maximum $160,000. Nevada imposes a nominal amount of annual corporate fee on corporations.
Based on TMSR-NV’s current authorized shares, we anticipate that TMSR-NV’s obligation for the Nevada annual corporate
fee will be $275.
Certain
Effects of the Re-domicile
and the Merger
The
Re-domicile will effect a change in our legal domicile; however, it will not result in any change in headquarters, business, jobs,
management, location of any of offices or facilities, number of employees, assets, liabilities or net worth (other than as a result
of the costs incident to the Re-domicile, which are immaterial). Management, including all directors and officers, will remain
the same in connection with the Re-domicile and will assume identical positions with TMSR-NV. There will be no substantive change
in the employment agreements for executive officers or in other direct or indirect interests of the current directors or executive
officers as a result of the Re-domicile. Upon the effective of the Merger, each stockholder’s shares of Common Stock will
be converted into an equivalent number of shares of Common Stock of TMSR-NV.
As
previously noted, the Articles of Incorporation and Bylaws of TMSR-NV will be the governing instruments of the surviving corporation
following the merger, resulting in some changes from our current Certificate of Incorporation and Bylaws. Some of these changes
are purely procedural in nature, such as a change in our registered office and agent from an office and agent in Delaware to an
office and agent in Nevada. Some changes, however, will be substantive in nature. There are also some differences between the
DGCL and Nevada corporation laws. Certain substantive changes to our current Certificate of Incorporation and Bylaws, as well
as the material differences between Delaware and Nevada law are discussed below. Such summary does not purport to be complete
and is qualified in its entirety by reference to Delaware and Nevada corporate laws and the Articles of Incorporation and Bylaws
of TMSR-NV, copies of which are included herewith as
Appendix D
and
Appendix E
, respectively. For ease of comparison,
our current Certificate of Incorporation and Bylaws are included herewith as
Appendix F
and
Appendix G
, respectively.
As
disclosed in more detail under “
Anti-Takeover Effects of Certain Provisions of Nevada Law and TMSR-NV’s Articles
of Incorporation and Bylaws
” below, certain provisions of TMSR-NV’s Articles of Incorporation and Bylaws and applicable
provisions of the Nevada Revised Statutes may have anti-takeover effects, making it more difficult for or preventing a third party
from acquiring control of our Company or changing our Board of Directors and management. These provisions may also have the effect
of deterring hostile takeovers or delaying changes in our Company’s control or in our management.
Changes
to Certificate of Incorporation
(a)
Limited Liability of Directors and Officers
.
The
Articles of Incorporation of TMSR-NV limit the liability of its directors to the maximum extent permitted by Nevada law. As a
result, a director will have no personal liability to TMSR-NV or its stockholders for damages for breach of fiduciary duty as
a director or officer, except for (a) acts or omissions which involve intentional misconduct, fraud or a knowing violation of
law, or (b) the payment of distributions in violation of section 78.300 of the Nevada Revised Statutes. Our current Certificate
of Incorporation contains a similar provision limiting the liability of our directors to the maximum extent permitted under Delaware
law. Please see the discussion under the heading “
Change from Delaware Law to Nevada Law
” below for more details
regarding the differences between Delaware and Nevada law with respect to the liability of directors and officers.
(b)
Indemnification of Directors and Officers
.
The
Articles of Incorporation of TMSR-NV allow it to indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative,
by reason of the fact that such person is or was a director or officer of TMSR-NV, or who is or was serving at the request of
TMSR-NV as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, against expenses,
including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by such person
in connection with the action, suit or proceeding, to the full extent permitted by the Nevada Revised Statutes. Our current Certificate
of Incorporation contains a similar provision providing for indemnification to the maximum extent permitted under Delaware law.
Please see the discussion under the heading “
Change from Delaware Law to Nevada Law
” below for more details
regarding the differences between Delaware and Nevada law with respect to the indemnification of directors and officers.
Our
Board of Directors has determined that it is in the best interest of the Company to provide such indemnification of our directors
and officers under certain circumstances in order to attract and retain superior candidates for these positions. We understand,
however, that insofar as indemnification by us for liabilities arising under the Exchange Act may be permitted to our directors,
officers and controlling persons pursuant to provisions of TMSR-NV’s Articles of Incorporation and Bylaws, or otherwise,
we have been advised that in the opinion of the SEC, such indemnification is against public policy and is, therefore, unenforceable.
In the event that a claim for indemnification by such director, officer or controlling person in the successful defense of any
action, suit or proceeding is asserted by such director, officer or controlling person in connection with the securities being
offered, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Exchange
Act and will be governed by the final adjudication of such issue.
(c)
No Restrictions on Business Combinations with Interested Stockholders
.
In
its Articles of Incorporation, TMSR-NV has elected not to be governed by the terms and provisions of Sections 78.411 through 78.444,
inclusive, of the Nevada Revised Statutes, regulating corporate takeovers. The application of these sections of the Nevada Revised
Statutes would have limited the ability of our stockholders to approve a transaction that they may deem to be in their interests.
Our Board of Directors has determined that remaining subject to this statute would place unnecessary burdens on the Company in
connection with the completion of beneficial business transactions with interested stockholders, and has thus decided to forego
the provisions of these sections of the Nevada Revised Statutes. The DGCL subjects the Company to similar restrictions on transactions
with interested stockholders, summarized below under the heading “
Change from Delaware Law to Nevada Law
,”
but our current Certificate of Incorporation does not contain a provision expressly electing not to be governed by that statute.
(d)
No Restrictions on Control Share Acquisitions
.
In
its Articles of Incorporation, TMSR-NV has elected not to be governed by the terms and provisions of Sections 78.378 through 78.3793,
inclusive, of the Nevada Revised Statutes, restricting certain acquisitions of a controlling interest in a corporation. Our Board
of Directors has determined that remaining subject to this statute would place unnecessary burdens on the Company in connection
with the completion of third party financings, and has thus decided to forego the provisions of these sections of the Nevada Revised
Statutes. The DGCL subjects the Company to similar restrictions on control share acquisitions, summarized below under the heading
“
Change from Delaware Law to Nevada Law
,” but our current Certificate of Incorporation does not contain a provision
expressly electing not to be governed by that statute.
Changes
to Bylaws
(a)
Removal of Directors
In
accordance with the Nevada Revised Statutes, TMSR-NV’s Bylaws provide that any director may be removed either for or without
cause at any meeting of stockholders by the affirmative vote of at least two-thirds of the voting power of the issued and outstanding
stock entitled to vote; provided, however, that notice of intention to act upon such matter shall have been given in the notice
calling such meeting. Our current Bylaws align provide that directors may be removed, either with or without cause, by the affirmative
vote of a majority of the votes of the issued and outstanding stock entitled to vote for the election of directors.
(b)
Expiration of Proxies
.
The
Bylaws of TMSR-NV provide that the appointment of a proxy may be valid for up to 6 months, unless the proxy provides for a longer
period, not exceeding 7 years. Our current Bylaws provide that the appointment of a proxy may be valid for up to 3 years, unless
it provides for a longer period.
(c)
Issuance of Uncertificated Shares
.
The
Bylaws of TMSR-NV provide that the Board of Directors may authorize the issuance of uncertificated shares of some or all of the
shares of its classes or series; provided that, (i) within a reasonable time after the issuance or transfer of uncertificated
shares, TMSR-NV send the stockholder a written statement containing the information required on the certificates and (ii) at least
annually thereafter, TMSR-NV provide to its stockholders of record a written statement confirming the information contained in
such informational statement. Our current Bylaws do not provide for the issuance of uncertificated shares.
(c)
Quorum for Meetings of Stockholders
.
The
Bylaws of TMSR-NV provide that, at all meetings of the Company’s stockholders, the presence in person or by proxy of the
holders of at least one-third (1/3
rd
) of the shares issued and outstanding and entitled to vote shall be necessary
and sufficient to constitute a quorum for the transaction of business except as otherwise provided by law, by the Articles of
Incorporation or by the Bylaws. Our current bylaws provide that the presence in person or by proxy of the holders of a majority
of the shares issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction
of business.
Change
from Delaware Law to Nevada Law
As
a result of the Re-domicile, the Company will now be governed by Nevada corporation laws. The following chart summarizes some
of the material differences between the DGCL and Nevada corporation laws. This chart does not address each difference between
Delaware law and Nevada law, but focuses on some of those differences which we believe are most relevant to the existing stockholders.
This chart is not intended as an exhaustive list of all differences, and is qualified in its entirety by reference to Delaware
and Nevada law.
Delaware
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Nevada
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Removal
of Directors
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The
DGCL permits the holders of a majority of shares of a corporation without a classified board then entitled to vote in an election
of directors to remove directors, with or without cause. Our current Bylaws align with the DGCL.
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Under
Nevada law, any one or all of the directors of a corporation may be removed, with or without cause, by the holders of not
less than two-thirds of the voting power of a corporation’s issued and outstanding stock. TMSR-NV’s Bylaws align
with Nevada law.
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Dividends
and other Distributions
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Section
170 of the DGCL permits the directors of a corporation, subject to any restrictions contained in its certificate of incorporation,
to declare and pay dividends upon the shares of its capital stock, either (1) out of its surplus, as computed in accordance
with the DGCL, or (2) in case there is no surplus, out of its net profits for the fiscal year in which the dividend is declared
and/or the preceding fiscal year. But such dividends cannot be declared out of net profits if the capital of the corporation
has diminished by depreciation in the value of its property, or by losses or otherwise, to an amount less than the aggregate
amount of the capital represented by the issued and outstanding stock of all classes having a preference upon the distribution
of assets.
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Nevada
law prohibits distributions to stockholders when the distributions would (i) render the corporation unable to pay its debts
as they become due in the usual course of business and (ii) render the corporation’s total assets less than the sum
of its total liabilities plus the amount that would be needed to satisfy the preferential rights upon dissolution of stockholders
whose preferential rights are superior to those receiving the distribution.
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Section
174 of the DGCL also imposes on any director under whose administration distributions are declared in violation of the foregoing
provision, personal liability to a corporation’s creditors in the event of its dissolution or insolvency, up to the
full amount of the unlawful distribution, for a period of 6 years following a dividend declaration, unless such director’s
dissent was recorded in the minutes of the proceedings approving the distribution.
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Section
78.300 of the Nevada Revised Statutes imposes on any director under whose administration distributions are declared in violation
of the foregoing provision, personal liability to a corporation’s creditors in the event of its dissolution or insolvency,
up to the full amount of the unlawful distribution, for a period of 3 years following a dividend declaration, unless such
director’s dissent was recorded in the minutes of the proceedings approving the distribution.
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Limitation
of Liability
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A
Delaware corporation is permitted to adopt provisions in its certificate of incorporation limiting or eliminating the liability
of a director to a company and its stockholders for monetary damages for breach of fiduciary duty as a director, provided
that such liability does not arise from certain proscribed conduct, including breach of the duty of loyalty, acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation of law or liability to the corporation based
on unlawful dividends or distributions or improper personal benefit. Our current Certificate of Incorporation currently limits
the liability of its directors to the fullest extent permitted by law.
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Under
Nevada law, unless the articles of incorporation provide for greater individual liability, a director or officer is not individually
liable to the corporation or its stockholders for any damages as a result of any act or failure to act in his capacity as
a director or office unless it is proven that: (a) his act or failure to act constituted a breach of his fiduciary duties
as a director or officer; and (b) his breach of those duties involved intentional misconduct, fraud or a knowing violation
of law. TMSR-NV’s Articles of Incorporation provide that no director or officer will be personally liable to the corporation
or any of its stockholders for damages for any breach of fiduciary duty except (i) for acts or omissions which involve intentional
misconduct, fraud or a knowing violation of law, or (ii) for the payment of dividends in violation of Section 78.300 of the
Nevada Revised Statutes.
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Indemnification
Under
the DGCL, the indemnification of directors and officers is authorized to cover judgments, amounts paid in settlement, and
expenses arising out of non-derivative actions where the director or officer acted in good faith and in or not opposed to
the best interests of the corporation, and, in criminal cases, where the director or officer had no reasonable cause to believe
that his or her conduct was unlawful. Unless limited or denied by the corporation’s certificate of incorporation, indemnification
is required to the extent of a director’s or officer’s successful defense. Additionally, under the DGCL, a corporation
may reimburse directors and officers for expenses incurred in a derivative action.
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In
suits that are not brought by or in the right of the corporation, Nevada law permits a corporation to indemnify directors,
officers, employees and agents for attorney’s fees and other expenses, judgments and amounts paid in settlement. The
person seeking indemnity may recover as long as he acted in good faith and believed his actions were either in the best interests
of or not opposed to the best interests of the corporation. Similarly, the person seeking indemnification must not have had
any reason to believe his conduct was unlawful.
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However,
we have included undertakings in various registration statements filed with the Securities and Exchange Commission that in
the event a claim for indemnification is asserted by a director or officer relating to liabilities under the Exchange Act,
we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether indemnification would be against public policy and will be governed by any final adjudication
of such issue.
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In
derivative suits, a corporation may indemnify its agents for expenses that the person actually and reasonably incurred.
A corporation may not indemnify a person if the person was adjudged to be liable to the corporation unless a court otherwise
orders.
No
corporation may indemnify a party unless it makes a determination, through its stockholders, directors or independent
counsel, that the indemnification is proper.
TMSR-NV’s
Articles of Incorporation currently indemnifies its officers and directors to the fullest extent permitted by Nevada law.
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TMSR-NV,
as successor to the Company in the Reincorporation, will abide by any undertakings made by the Company in registration statements
or reports filed with the Securities and Exchange Commission that in the event a claim for indemnification is asserted by
a director or officer relating to liabilities under the Exchange Act, TMSR-NV will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether indemnification
would be against public policy and will be governed by any final adjudication of such issue.
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Increasing
or Decreasing Authorized Shares
Delaware
law contains no such similar provision.
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Nevada
law allows the board of directors of a corporation, unless restricted by the articles of incorporation, to increase or decrease
the number of authorized shares in the class or series of the corporation’s shares and correspondingly effect a forward
or forward split of any such class or series of the corporation’s shares without a vote of the stockholders, so long
as the action taken does not change or alter any right or preference of the stockholder and does not include any provision
or provisions pursuant to which only money will be paid or script issued to stockholders who hold 10% or more of the outstanding
shares of the affected class and series, and who would otherwise be entitled to receive fractions of shares in exchange for
the cancellation of all of their outstanding shares.
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Corporate
Opportunity
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Delaware
law provides that contracts or transactions between a corporation and one or more of its officers or directors or an entity
in which they have an interest is not void or voidable solely because of such interest or the participation of the director
or officer in a meeting of the board or a committee which authorizes the contract or transaction if: (i) the material facts
as to the relationship or interest and as to the contract or transaction are disclosed or are known to the board or the committee,
and the board or the committee in good faith authorizes the contract or transaction by the affirmative vote of a majority
of disinterested directors; (ii) the material facts as to the relationship or interest and as to the contract or transaction
are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved
in good faith by a vote of the stockholders; or (iii) the contract or transaction is fair as to the corporation as of the
time it is authorized, approved or ratified by the board of directors, a committee thereof, or the stockholders.
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Under
Nevada law, a director breaches her duty of loyalty to the corporation if the director takes a business opportunity that
is within the scope of the corporation’s potential business for himself or presents it to another party without
first giving the corporation an opportunity to fairly consider the business opportunity. All such opportunities should
be presented first to the corporation and fully considered.
However,
a contract or other transaction is not void or voidable solely because the contract or transaction is between a Nevada
corporation and its director if the fact of financial interest is known to the board of directors or committee, and the
board or committee authorizes, approves or ratifies the contract or transaction in good faith by a vote sufficient for
the purpose without counting the vote of the interested director, and the contract or transaction is fair as to the corporation
at the time it is authorized.
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Expiration
of Proxies
Section
212 of the DGCL provides that the appointment of a proxy with no expiration date may be valid for up to 3 years, but that
a proxy may be provided for a longer period. Furthermore, a duly executed proxy may be irrevocable if it states that it is
irrevocable and if, it is coupled with an interest in the stock itself or an interest in the corporation generally, sufficient
in law to support an irrevocable power.
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Nevada
law provides that proxies may not be valid for more than 6 months, unless the proxy is coupled with an interest or the stockholder
specifies that the proxy is to continue in force for a longer period, not to exceed 7 years.
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Interested
Stockholder Combinations
Delaware
has a business combination statute, set forth in Section 203 of the DGCL, which provides that any person who acquires 15%
or more of a corporation’s voting stock (thereby becoming an “interested stockholder”) may not engage in
certain “business combinations” with the target corporation for a period of three years following the time the
person became an interested stockholder, unless (i) the board of directors of the corporation has approved, prior to the interested
stockholder’s acquisition of stock, either the business combination or the transaction that resulted in the person becoming
an interested stockholder, (ii) upon consummation of the transaction that resulted in the person becoming an interested stockholder,
that person owns at least 85% of the corporation’s voting stock outstanding at the time the transaction is commenced
(excluding shares owned by persons who are both directors and officers and shares owned by employee stock plans in which participants
do not have the right to determine confidentially whether shares will be tendered in a tender or exchange offer), or (iii)
the business combination is approved by the board of directors and authorized by the affirmative vote (at an annual or meeting
and not by written consent) of at least two-thirds of the outstanding voting stock not owned by the interested stockholder.
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Section
78.438 of the Nevada Revised Statutes prohibits a Nevada corporation from engaging in any business combination with any
interested stockholder (any entity or person beneficially owning, directly or indirectly, 10% or more of the outstanding
voting stock of the corporation and any entity or person affiliated with or controlling or controlled by any of these
entities or persons) for a period of three years following the date that the stockholder became an interested stockholder,
unless prior to that date, the board of directors of the corporation approved either the business combination or the transaction
that resulted in the stockholder becoming an interested stockholder.
Section
78.439 provides that business combinations after the three year period following the date that the stockholder becomes
an interested stockholder may also be prohibited unless approved by the corporation’s directors or other stockholders
or unless the price and terms of the transaction meet the criteria set forth in the statute.
TMSR
NV’s Articles of Incorporation does not contain a provision expressly electing not to be governed by these provisions
of the Nevada Revised Statutes.
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For
purposes of determining whether a person is the “owner” of 15% or more of a corporation’s voting stock
for purposes of Section 203 of the DGCL, ownership is defined broadly to include the right, directly or indirectly, to
acquire the stock or to control the voting or disposition of the stock. A business combination is also defined broadly
to include (i) mergers and sales or other dispositions of 10% or more of the assets of a corporation with or to an interested
stockholder, (ii) certain transactions resulting in the issuance or transfer to the interested stockholder of any stock
of the corporation or its subsidiaries, (iii) certain transactions which would result in increasing the proportionate
share of the stock of a corporation or its subsidiaries owned by the interested stockholder, and (iv) receipt by the interested
stockholder of the benefit (except proportionately as a stockholder) of any loans, advances, guarantees, pledges or other
financial benefits.
These
restrictions placed on interested stockholders by Section 203 of the DGCL do not apply under certain circumstances, including,
but not limited to, the following: (i) if the corporation’s original certificate of incorporation contains a provision
expressly electing not to be governed by Section 203 or (ii) if the corporation, by action of its stockholders, adopts
an amendment to its bylaws or certificate of incorporation expressly electing not to be governed by Section 203, provided
that such an amendment is approved by the affirmative vote of not less than a majority of the outstanding shares entitled
to vote and that such an amendment will not be effective until 12 months after its adoption (except for limited circumstances
where effectiveness will occur immediately) and will not apply to any business combination with a person who became an
interested stockholder at or prior to such adoption.
Our
current Certificate of Incorporation does not contain a provision expressly electing not to be governed by that statute.
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Control
Share Acquisitions
Delaware’s
control share acquisition statute generally provides that shares acquired in a “control share acquisition” will
not possess any voting rights unless either the board of directors approves the acquisition or such voting rights are approved
by a majority of the corporation’s voting shares, excluding interested shares. Interested shares are those held by a
corporation’s officers and inside directors and by the acquiring party. A “control share acquisition” is
an acquisition, directly or indirectly, by any person of ownership of, or the power to direct the exercise of voting power
with respect to, issued and outstanding “control shares” of a publicly held Delaware corporation. “Control
shares” are shares that, except for Delaware’s control share acquisition statute, would have voting power that,
when added to all other shares that can be voted by the acquiring party, would entitle the acquiring party, immediately after
the acquisition of such shares, directly or indirectly, to exercise voting power in the election of directors within any of
the following ranges: (1) at least 20% but less than 33 1/3% of all voting power; (2) at least 33 1/3% but less than a majority
of all voting power; or (3) a majority or more of all voting power.
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Sections
78.378 through 78.3793 of the Nevada Revised Statutes limit the voting rights of certain acquired shares in a corporation.
The provisions generally apply to any acquisition of outstanding voting securities of a Nevada corporation that has 200 or
more stockholders, at least 100 of which are Nevada residents, and conducts business in Nevada (an “issuing corporation”)
resulting in ownership of one of the following categories of an issuing corporation's then outstanding voting securities:
(i) 20% or more but less than 23%; (ii) 23% or more but less than 50%; or (iii) 50% or more. The securities acquired in such
acquisition are denied voting rights unless a majority of the security holders approve the granting of such voting rights.
Unless an issuing corporation’s articles of incorporation or bylaws then in effect provide otherwise: (i) voting securities
acquired are also redeemable in part or in whole by an issuing corporation at the average price paid for the securities within
30 days if the acquiring person has not given a timely information statement to an issuing corporation or if the stockholders
vote not to grant voting rights to the acquiring person's securities, and (ii) if outstanding securities and the security
holders grant voting rights to such acquiring person, then any security holder who voted against granting voting rights to
the acquiring person may demand the purchase from an issuing corporation, for fair value, all or any portion of his securities.
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Our
current Certificate of Incorporation does not contain a provision expressly electing not to be governed by this statute.
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TMSR-NV’s
Articles of Incorporation does not contain a provision expressly electing not to be governed by these provisions of the Nevada
Revised Statues.
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Taxes
and Fees
Delaware
imposes annual franchise tax fees on all corporations incorporated in Delaware. The annual fee ranges from a nominal fee to
a maximum of $180,000, based on an equation consisting of the number of shares authorized, the number of shares outstanding
and the net assets of the corporation. Our franchise tax obligation for 2012 was $180,000.
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Nevada
charges corporations incorporated in Nevada nominal annual corporate fees based on the corporation’s authorized stock,
as well as a $200 business license fee, and does not impose any franchise taxes on corporations. Based on TMSR- NV’s
current authorized shares, we anticipate that TMSR-NV’s obligation for the annual corporate fee will be $275.
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Anti-Takeover
Effects of Certain Provisions of Nevada Law and TMSR-NV’s Articles of Incorporation and Bylaws
The
SEC’s Release No. 34-15230 requires disclosure and discussion of the effects of any stockholder proposal that may be used
as an anti-takeover device. Certain provisions of Nevada’s corporation law and TMSR-NV’s Articles of Incorporation
and Bylaws may have the effect of discouraging, delaying or preventing a change in control or an unsolicited acquisition proposal
that a stockholder might consider favorable, including a proposal that might result in the payment of a premium over the market
price for the shares held by stockholders. These provisions are summarized in the following paragraphs.
Limitation
of Director Liability
. TMSR-NV’s Articles of Incorporation limit the liability of directors (in their capacity as directors
but not in their capacity as officers) to us or our stockholders to the fullest extent permitted by Nevada law. Specifically,
TMSR-NV’s directors will not be personally liable for monetary damages for breach of a director’s fiduciary duty as
a director, except for liability: (a) for acts or omissions which involve intentional misconduct, fraud or a knowing violation
of law; or (b) under Section 78.300 of the Nevada Revised Statutes, which relates to unlawful payments of dividends.
Indemnification
Arrangements
. TMSR-NV’s Articles of Incorporation provide that its directors and officers be indemnified and provide
for the advancement to them of expenses in connection with actual or threatened proceedings and claims arising out of their status
as such to the fullest extent permitted by the Nevada Revised Statutes. We expect to enter into indemnification agreements with
each TMSR-NV’s directors and executive officers that provide them with rights to indemnification and expense advancement
to the fullest extent permitted under the Nevada Revised Statutes.
Removal
of Directors
. The increase in the number of votes required to remove a director from the Board of Directors may make it more
difficult for, or prevent or deter a third party from acquiring control of TMSR-NV or changing TMSR-NV’s board of directors
and management, as well as inhibit fluctuations in the market price of TMSR-NV’s shares that could result from actual or
rumored takeover attempts.
While
it is possible that the management could use these provisions to resist or frustrate a third-party transaction providing an above-market
premium that is favored by a majority of the stockholders, we did not intend to construct or enable any anti-takeover defense
or mechanism on our behalf. We have no intent or plan to employ these provisions as anti-takeover devices and do not have any
plans or proposals to adopt any other provisions or enter into other arrangements that may have material anti-takeover consequences.
Anticipated
Federal Tax Consequences
We
have not requested and will not request a ruling from the Internal Revenue Service, nor have we requested or received a tax opinion
from an attorney, as to the various tax consequences of the Reincorporation in the State of Nevada. We are structuring the Reincorporation
in an effort to obtain the following consequences:
(a)
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the
Reincorporation in the State of Nevada, to be accomplished by a merger between the Company and TMSR-NV, will constitute a
tax-free reorganization within the meaning of section 368(a)(1)(F) of the Internal Revenue Code of 1986;
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(b)
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no
gain or loss for federal income tax purposes will be recognized by our stockholders on receipt by them of the Common Stock
of TMSR-NV in exchange for shares of our Common Stock;
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(c)
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the
basis of the TMSR-NV Common Stock received by our stockholders in exchange for their shares of our Common Stock pursuant to
the Reincorporation in the State of Nevada will be the same as the basis for our Common Stock; and
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(d)
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the
holding period for the TMSR-NV Common Stock for capital gains treatment received in exchange for our Common Stock will include
the period during which our Common Stock exchanged therefor is held.
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This
discussion should not be considered as tax or investment advice, and the tax consequences of the Reincorporation may not be the
same for all stockholders. It should be noted that the foregoing positions are not binding on the Internal Revenue Service, which
may challenge the tax-free nature of the Reincorporation in the state of Nevada. A successful challenge by the Internal Revenue
Service could result in taxable income to the Company, TMSR-NV, and our stockholders, as well as other adverse tax consequences.
ACCORDINGLY, EACH STOCKHOLDER SHOULD CONSULT WITH HIS OR HER OWN TAX ADVISOR WITH RESPECT TO ALL OF THE POTENTIAL TAX CONSEQUENCES
TO HIM OR HER OF THE REINCORPORATION.
Exchange
of Stock Certificates
Following
effectiveness of the Re-domicile in Nevada, all stock certificates which represented shares of our Common Stock shall represent
ownership of TMSR-NV’s Common Stock. We will print new stock certificates and we will obtain a new CUSIP number for our
Common Stock that reflects the change in our state of incorporation, although stockholders will not be required to tender their
old stock certificates for transfer. However, to eliminate confusion in transactions in our securities, management urges stockholders
to surrender their old certificates in exchange for new certificates and has adopted a policy to facilitate this process. Each
stockholder will be entitled to submit his or her old stock certificates (any certificates issued prior to the effective date
of the change in our state of incorporation) to our transfer agent, Action Stock Transfer Corp., and to be issued in exchange
therefor, new Common Stock certificates representing the number of shares of TMSR-NV’s Common Stock of which each stockholder
is the record owner after giving effect to the Reincorporation, and for a period of 30 days after the effective date of the Reincorporation,
we will pay on one occasion only for such issuance. We will not pay for issuing stock certificates in the name of a person other
than the name appearing on the old certificate or for the issuance of new stock certificates in excess of the number of old certificates
submitted by a stockholder.
STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATE(S).
Securities
Act Consequences
The
shares of TMSR-NV’s Common Stock to be issued in exchange for shares of our Common Stock are not being registered under
the Securities Act of 1933, as amended (the “
Securities Act
”). In that regard, TMSR-NV is relying on
Rule 145(a)(2) under the Securities Act, which provides that a merger which has “as its sole purpose” a change in
the domicile of a corporation does not involve the sale of securities for purposes of the Securities Act. Pursuant to Rule 145
under the Securities Act, the merger of the Company into TMSR-NV and the issuance of shares of Common Stock of TMSR-NV in exchange
for the shares of the Company’s Common Stock is exempt from registration under the Securities Act, since the purpose of
the transaction is a change of our domicile within the United States. The effect of the exemption is that the shares of our Common
Stock issuable as a result of the Reincorporation may be resold by the former stockholders without restriction to the same extent
that such shares may have been sold before the effectiveness of the Reincorporation.
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE REDOMICILE AND THE MERGER.
REPORT
OF THE AUDIT COMMITTEE
The
Audit Committee of the Board is comprised of four non-employee Directors, each of whom has been determined by the Board to be
“independent” under the meaning of Rule 10A-3(b)(1) under the Exchange Act. The Board has determined, based upon an
interview of Yaqing Hu and a review of Ms. Hu’s responses to a questionnaire designed to elicit information regarding her
experience in accounting and financial matters, that Ms. Hu shall be designated as an “Audit Committee financial expert”
within the meaning of Item 401(e) of SEC Regulation S-K, as Ms. Hu has past employment experience in finance or accounting, requisite
professional certification in accounting, or any other comparable experience or background which results in her financial sophistication.
The
Audit Committee assists the Board’s oversight of the integrity of the Company’s financial reports, compliance with
legal and regulatory requirements, the qualifications and independence of the Company’s independent registered public accounting
firm, the audit process, and internal controls. The Audit Committee operates pursuant to a written charter adopted by the Board.
The Audit Committee is responsible for overseeing the corporate accounting and financing reporting practices, recommending the
selection of the Company’s registered public accounting firm, reviewing the extent of non-audit services to be performed
by the auditors, and reviewing the disclosures made in the Company’s periodic financial reports. The Audit Committee also
reviews and recommends to the Board that the audited financial statements be included in the Company’s Annual Report on
Form 10-K.
Following
the end of the fiscal year ended December 31, 2017, the Audit Committee (1) reviewed and discussed the audited financial statements
for the fiscal year ended December 31, 2017 with Company management; (2) discussed with the independent auditors the matters required
to be discussed by PCAOB Auditing Standard No. 1301, as may be modified or supplemented; and (3) received the written disclosures
and the letter from the independent accountants required by PCAOB Auditing Standard No. 1005 , as may be modified or supplemented,
and has discussed with the independent accountant its independence.
Based
on the review and discussions referred to above, the Audit Committee had recommended to the Board of Directors that the audited
financial statements be included in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017
for filing with the SEC.
/s/ The Audit Committee
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Yaqing Hu
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Hui Zhu
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Chenchen Zhang
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Wenting Zou
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APPENDIX
B
FORM
OF CERTIFICATE OF AMENDMENT TO THE COMPANY’S CERTIFICATE OF INCORPORATION
CERTIFICATE
OF AMENDMENT
OF
THE
SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TMSR
HOLDING COMPANY LIMITED
(Pursuant
to Section 242 of the Delaware General Corporation Law)
TMSR
Holding Company Limited, a corporation organized and existing under and by virtue of the General Corporation Law of the State
of Delaware, does hereby certify that:
1.
The name of the corporation is TMSR Holding Company Limited. (the “Corporation”).
2.
The Certificate of Incorporation of the Corporation is hereby amended by replacing Section 4.01 in its entirety with following
paragraph
Authorized
Capital Stock. The total number of shares of all classes of capital stock which the Corporation is authorized to issue is 220,000,000
shares, consisting of 200,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), and 20,000,000
shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”).
3.
The Certificate of Incorporation of the Corporation is hereby amended by adding the following text as a new paragraph at the end
of Article FOURTH:
“Effective
as of 5:00 p.m. EDT on ______________, 2018, each one (1) share of the issued and outstanding Common Stock, $0.0001 par value,
of the Corporation shall be forward split into two (2) shares of Common Stock of the Corporation.”
4.
This Certificate of Amendment has been duly adopted in accordance with the provisions of Section 242 of the General Corporation
Law of the State of Delaware by the written consent of all of the members of the Board of Directors of the Corporation in accordance
with Section 141(f) of the General Corporation Law of the State of Delaware and by the holders of a majority of the Corporation’s
issued and outstanding Common Stock at a meeting of the stockholders of the Corporation duly called and held upon notice in accordance
with Section 222 of the General Corporation Law of the State of Delaware.
IN
WITNESS WHEREOF, the Corporation has caused this Certificate to be signed this ____ day of ____________, 2018.
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By:
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/s/ Jiazhen Li
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Name:
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Jiazhen Li
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Title:
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Co-Chairman and Chief Executive Officer
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APPENDIX
C
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (hereinafter
called this “
Agreement
”), dated as of _______ __, 2018, is entered into between TMSR Holding Company
Limited, a Delaware corporation (the “
Company
”) and TMSR Holding Company Limited, a Nevada corporation
and a wholly owned subsidiary of the Company (“
Merger Sub
”). The Company and Merger Sub are sometimes
together referred to herein as the “
Constituent Entities
.”
RECITALS
WHEREAS, Merger Sub was formed in the State
of Nevada on _March 28, 2018 as a wholly-owned subsidiary of the Company; and
WHEREAS, the board of directors of each
of the Company and Merger Sub deems it advisable and in the best interests of the Company and Merger Sub, respectively, upon the
terms and subject to the conditions herein stated, that the Company be merged with and into Merger Sub and that Merger Sub be the
surviving corporation (the “
Merger
”).
NOW, THEREFORE, in consideration of the
premises and of the agreements of the parties hereto contained herein, the parties hereto agree in accordance with the applicable
provisions of the laws of the States of Delaware and Nevada which permit such merger, as follows:
ARTICLE I
MERGER; EFFECTIVE TIME
1.1
The Merger
. Upon the terms
and subject to the conditions set forth in this Agreement, at the Effective Time (as defined below), the Company shall be merged
with and into Merger Sub, whereupon the separate existence of the Company shall cease.
1.2
Effective Time
. The Merger
shall become effective on _______ __, 2018, following the filing of a certificate of ownership and merger with the Secretary of
State of the State of Delaware and the filing of articles of merger with the Secretary of State of the State of Nevada (the “
Effective
Time
”).
ARTICLE II
SURVIVING CORPORATION
2.1
Surviving Corporation
.
The name of the Surviving Corporation shall be “TMSR Holding Company Limited” (sometimes hereinafter referred to as
the “
Surviving Corporation
”).
ARTICLE III
TERMS AND CONDITIONS OF THE MERGER
3.1
Articles of Incorporation
.
The Articles of Incorporation of Merger Sub in effect at the Effective Time shall be the Articles of Incorporation of the Surviving
Corporation, and shall continue in full force and effect until amended and changed in accordance with the provisions provided therein
or the applicable provisions of Nevada Revised Statutes, as amended (the “
Nevada Statutes
”).
3.2
Bylaws
. The Bylaws of Merger
Sub in effect at the Effective Time shall be the Bylaws of the Surviving Corporation, and shall continue in full force and effect
until amended and changed in accordance with the provisions provided therein or the applicable provisions of the Nevada Statutes.
3.3
Directors
. The directors
of Merger Sub at the Effective Time shall, from and after the Effective Time, continue to be the directors of the Surviving Corporation,
until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal.
3.4
Officers
. The officers
of Merger Sub at the Effective Time shall, from and after the Effective Time, continue to be the officers of the Surviving Corporation,
until their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal.
3.5
Submission to Stockholder Vote
.
This
Agreement shall be submitted to a vote of the stockholders of the Constituent Entities, respectively, as provided by applicable
law, and shall take effect, and be deemed to be the Plan of Merger of the Constituent Entities, upon the approval or adoption thereof
by such stockholders in accordance with the requirements of the laws of the States of Delaware and Nevada, respectively.
3.6
Filing of Articles of Merger
in the State of Nevada
. As soon as practicable after the requisite stockholder approvals referenced in Section 3.5 hereof,
each of the Constituent Entities shall execute and deliver articles of merger for filing and recording with the Secretary of State
of the State of Nevada in accordance with the Nevada Statutes.
3.7
Filing of Certificate of Merger
in the State of Delaware
. As soon as practicable after the requisite stockholder approvals referenced in Section 3.5 hereof,
the Company shall execute and deliver a certificate of ownership and merger for filing and recording with the Secretary of State
of the State of Delaware in accordance with the General Corporation Law of the State of Delaware.
ARTICLE IV
EFFECT OF MERGER
4.1
Effect of Merger on Constituent
Entities
.
At the Effective Time, the Constituent Entities shall become a single corporation, which shall be Merger
Sub, and the separate existence of the Company shall cease except to the extent provided by the laws of the States of Delaware
and Nevada. Merger Sub shall thereupon and thereafter possess all the rights, privileges, immunities and franchises, of both a
public and private nature, of each of the Constituent Entities; and all property, real, personal and mixed, and all debts due on
whatever account, including subscriptions to shares, and all other choices in action, and all and every other interest of, or belonging
to, or due to each of the Constituent Entities, shall be taken and deemed to be vested in Merger Sub, without further act or deed;
and the title to all real estate, or any interest therein, vested in either of the Constituent Entities shall not revert or be
in any way impaired by reason of the Merger. Merger Sub shall thenceforth be responsible and liable for all of the liabilities
and obligations of each of the Constituent Entities and any existing claim, action or proceeding pending by or against either of
the Constituent Entities may be prosecuted to judgment as if the Merger had not occurred, or the Surviving Entity may be substituted
in such claim, action or proceeding, and neither the rights of creditors nor any liens upon the property of either of the Constituent
Entities shall be impaired by the Merger.
4.2
Effect of Merger on Capital
Stock
. At the Effective Time, as a result of the Merger and without any further action on the part of the Constituent Entities
or their stockholders:
(a) each share of the common stock of the
Company issued and outstanding immediately prior thereto shall be converted into one fully paid and nonassessable share of the
common stock of Merger Sub with the same rights, powers and privileges as the shares of the common stock of the Company so converted,
and all shares of such common stock shall be cancelled and retired and shall cease to exist;
(b) all outstanding and unexercised portions
of each option, warrant and security exercisable or convertible by its terms into the common stock of the Company (including convertible
promissory notes), whether vested or unvested, which is outstanding immediately prior to the Effective Time (each, a “
Company
Stock Option
”) shall be assumed by Merger Sub and shall be deemed to constitute an option, warrant or convertible
security, as the case may be, to acquire the same number of shares of the common stock of Merger Sub as the holder of such Company
Stock Option would have been entitled to receive had such holder exercised or converted such Company Stock Option in full immediately
prior to the Effective Time (not taking into account whether such Company Stock Option was in fact exercisable or convertible at
such time), at the same exercise price per share, and shall, to the extent permitted by law and otherwise reasonably practicable,
have the same term, exercisability, vesting schedule, status and all other material terms and conditions; and Merger Sub shall
take all steps to ensure that a sufficient number of shares of its common stock is reserved for the exercise of such Company Stock
Options; and
(c) each share of the common stock of Merger
Sub owned by the Company shall no longer be outstanding and shall be cancelled and retired and shall cease to exist.
4.3
Certificates
.
At
and after the Effective Time, all of the outstanding certificates that immediately prior thereto represented shares of the common
stock of the Company and options, warrants or other securities of the Company, shall be deemed for all purposes to evidence ownership
of and to represent the shares of the respective shares of the common stock of Merger Sub and options, warrants or other securities
of Merger Sub, as the case may be, into which the shares represented by such certificates have been converted as herein provided
and shall be so registered on the books and records of Merger Sub or its transfer agent. The registered owner of any such outstanding
certificate shall, until such certificate shall have been surrendered for transfer or otherwise accounted for to Merger Sub or
its transfer agent, have and be entitled to exercise any voting and other rights with respect to, and to receive any dividends
and other distributions upon, the shares of the common stock of the Company and options, warrants or other securities of Merger
Sub, as the case may be, evidenced by such outstanding certificate, as above provided.
ARTICLE V
MISCELLANEOUS AND GENERAL
5.1
Further Assurances
. From
time to time, as and when required by Merger Sub or by its successors or assigns, there shall be executed and delivered on behalf
of the Company such deeds, assignments and other instruments, and there shall be taken or caused to be taken by it all such further
action as shall be appropriate or advisable or necessary in order to vest, perfect or confirm, of record or otherwise, in Merger
Sub, the title to and possession of all property, interests, assets, rights, privileges, immunities, powers, franchises and authority
of the Company, and otherwise to carry out the purposes of this Agreement. The officers and directors of Merger Sub are fully authorized
in the name of and on behalf of the Company, or otherwise, to take any and all such actions and to execute and deliver any and
all such deeds and other instruments as may be necessary or appropriate to accomplish the foregoing.
5.2
Termination
. Anything herein
or elsewhere to the contrary notwithstanding, this Agreement may be terminated and the Merger may be abandoned, at any time prior
to the Effective Time, whether before or after approval of this Agreement by the stockholders of the Company, if the board of directors
of the Company determines for any reason, in its sole judgment and discretion, that the consummation of the Merger would be inadvisable
or not in the best interests of the Company and its stockholders. In the event of the termination and abandonment of this Agreement,
this Agreement shall become null and void and have no effect, without any liability on the part of either the Company or Merger
Sub, or any of their respective stockholders, directors or officers.
5.3
Modification or Amendment
.
Subject to the provisions of applicable law, at any time prior to the Effective Time, the Board of Directors of the Constituent
Entities may amend, modify or supplement this Agreement, notwithstanding approval of this Agreement by the stockholders; provided,
however, that an amendment made subsequent to the approval of this Agreement by the stockholders shall not (a) alter or change
the amount or kind of shares and/or rights to be received in exchange for or on conversion of all or any of the shares or any class
or series thereof of such corporation, (b) alter or change any provision of the Articles of Incorporation of Merger Sub to be effected
by the Merger, or (c) alter or change any of the terms or conditions of this Agreement if such alteration or change would adversely
affect the holders of any class or series of capital stock of any of the parties hereto.
5.4
Tax-Free Reorganization
.
The Merger is intended to be a tax-free plan or reorganization within the meaning of Section 368(a)(1)(F) of the Internal Revenue
Code of 1986, as amended.
5.5
GOVERNING LAW
. THIS AGREEMENT
SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEVADA WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
5.6
Entire Agreement
. This
Agreement constitutes the entire agreement and supersedes all other prior agreements, understandings, representations and warranties,
both written and oral, among the parties, with respect to the subject matter hereof.
5.7
No Third Party Beneficiaries
.
This Agreement is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
5.8
Severability
. The provisions
of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity
or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person
or any circumstance, is determined by any court or other authority of competent jurisdiction to be invalid or unenforceable, (a)
a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable,
the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of
such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity
or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
5.9
Headings
. The headings
herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise
affect any of the provisions hereof.
5.10
Counterparts
. In order
to facilitate the filing and recording of this Agreement, it may be executed in any number of counterparts, each such counterpart
being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Agreement and
Plan of Merger has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first
written above.
|
TMSR HOLDING COMPANY LIMITED
|
|
a Delaware corporation
|
|
|
|
By:
|
|
|
Name:
|
Jiazhen Li
|
|
Title:
|
Co-Chairman of the Board
|
|
|
|
TMSR HOLDING COMPANY LIMITED
|
|
a Nevada corporation
|
|
|
|
By:
|
|
|
Name:
|
Jiazhen Li
|
|
Title:
|
Sole Director
|
[
Signature Page to Agreement and Plan
of Merger
]
APPENDIX D
ARTICLE OF INCORPORATION
OF
TMSR HOLDING COMPANY LIMITED
|
BARBARA
K. CEGAVSKE
|
|
|
|
Secretary
of State
|
|
|
|
202
North Carson Street
|
|
|
|
Carson
City, Nevada 89701-4201
|
|
Filed in the office of
|
Document
Number
|
(775)
684-5708
Website:
www.nvsos.gov
|
|
/s/ Barbara
K. Cegavske
|
20180139516-56
|
|
|
Barbara
K. Cegavske
|
Filing
Date and Time
|
|
|
|
Secretary
of State
|
03/28/2018
9:06 AM
|
|
|
State
of Nevada
|
Entity
Number
|
Articles
of Incorporation
|
|
|
E0161102018-0
|
(PURSUANT
TO NRS CHAPTER 78)
|
|
|
|
|
|
|
|
USE BLACK INK ONLY - DO NOT HIGHLIGHT
|
ABOVE SPACE IS FOR OFFICE USE ONLY
|
1.
Name of Corporation:
|
TMSR
Holding Company Limited
|
2.
Registered Agent for Service of Process:
(check only one box)
|
☒ Commercial Registered Agent: Vcorp Services, LLC
|
|
Name
|
|
☐
Noncommercial Registered Agent
|
OR
|
☐
Office or Position with Entity
|
(name and address below)
|
|
(name and address below)
|
|
|
|
|
Name of Noncommercial Registered Agent OR Name of Title of Office or Other Position with Entity
|
|
|
|
Nevada
|
|
Street Address
|
City
|
Zip Code
|
|
|
|
Nevada
|
|
Mailing Address (if different from street address)
|
City
|
Zip Code
|
3.
Authorized
Stock:
(number of shares corporation
is authorized to issue)
|
Number
of shares with par value:
|
110,000,000
|
par value per share:
|
$ 0.0001
|
Number
of
shares without
value par value:
|
4.
Names and Addresses of the Board of Directors/Trustees:
(each Director/Trustee must be a natural person at least 18
years of age; attach additional page if more than two directors/ trustees)
|
1) Jiazhen Li
|
|
|
|
Name
|
|
|
|
|
|
|
|
No.21 Jiefang Avenue, Qiaokou District
|
Wuhan, Hubei
|
CN
|
|
Street Address
|
City
|
State
|
Zip Code
|
2)
|
|
|
|
Name
|
|
|
|
|
|
|
|
Street Address
|
City
|
State
|
Zip Code
|
5.
Purpose:
(optional; required only if Benefit Corporation status selected)
|
The
purpose of the corporation shall be:
|
6.
Benefit Corporation:
(see
instructions)
|
☐
Yes
|
7.
Name, Address and Signature of Incorporator:
(attach additional page if more than one incorporator)
|
I
declare, to the best of my knowledge under penalty of perjury, that the information contained herein is correct and acknowledge
that pursuant to NRS 239,330, it is a category C felony to knowingly offer any false or forged instrument for filing in the
Office of the Secretary of State.
|
|
Zixuan Liu,
Esq
.
|
/s/
Zixuan Liu, Esq.
|
Name
|
Incorporator Signature
|
|
1450 Broadway
|
New York
|
NY
|
10018
|
|
Address
|
City
|
State
|
Zip Code
|
8.
Certificate of Acceptance of Appointment of Registered Agent:
|
I
hereby accept appointment as Registered Agent for the above named Entity. if the registered agent is unable to sign the Articles
of Incorporation, submit a separate signed Registered Agent Acceptance form.
|
|
X
|
3/28/2018
|
|
Authorized
Signature of Registered Agent or On Behalf of Registered Agent Entity
|
Date
|
Nevada
Secretary of State NRS 78 Articles
This
form must be accompanied by appropriate fees.
ATTACHMENT TO
ARTICLES OF INCORPORATION
OF
TMSR HOLDING COMPANY LIMITED
This Articles of Incorporation of TMSR
Holding Company Limited (the “Corporation”) are hereby supplemented with following additions to Articles 3 and additional
Articles 8-12.
ARTICLE 3 – AUTHORIZED STOCK
The aggregate number of shares which the
Corporation shall have the authority to issue is 200,000,000 shares of Common Stock, $0.0001 par value per share, and 20,000,000
shares of Preferred Stock, $0.0001 par value per share. All Common Stock of the Corporation shall be of the same class and shall
have the same rights and preferences. The Corporation shall be of the same class and shall have the same rights and preferences.
The Corporation shall have authority to issue the shares of Preferred Stock in one or more series with such rights, preferences
and designations as determined by the Board of Directors from time to time to issue Preferred Stock in one or more series, and
in connection with the creation of any such series, by resolution or resolutions providing for the issue of the shares thereof,
to determine and fix such voting powers, full or limited, or no voting powers, and such designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including, without limitation
thereof, dividend rights, special voting rights, conversion rights, redemption privileges and liquidation preferences, as shall
be stated and expressed in such resolutions, all to the full extent now or hereafter permitted by the Nevada Revised Statutes.
ARTICLE 8 – AMENDMENT OF BYLAWS
The Board of Directors of the Corporation
shall have the power to make, alter, amend or repeal the Bylaws of the Corporation, except to the extent that the Bylaws otherwise
provide.
ARTICLE 9 – INDEMNIFCATION OF OFFICERS
AND DIRECTORS
The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the
Corporation, or who is or was serving at the request of the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against expenses, including attorney’s fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with the action, suit or proceeding, to the full extent
permitted by the Nevada Revised Statues as such statutes may be amended from time to time.
ARTICLE 10 – LIABILITY OF DIRECTORS
AND OFFICERS
No director or officer shall be personally
liable to the Corporation or any of its stockholders for damages for any breach of fiduciary duty as a director or officer,
provided
,
however
, that the foregoing provision shall not eliminate or limit the liability of a director or officer (i) for acts
or omissions which involve international misconduct, fraud or a knowing violation of law, or (ii) for the payment of dividends
in violation of Section 78.300 of the Nevada Revised Statutes. Any repeal or modification of this Article 10 by the stockholders
of the Corporation shall be prospective only, and shall not adversely affect any limitation of the personal liability of a director
or officer of the Corporation for acts or omissions prior to such repeal or modification.
ARTICLE 11 – ACQUISITION OF
CONTROLLING INTEREST
The Corporation elects not to be governed
by the terms and provisions of Sections 78.378 through 78.3793, inclusive, of the Nevada Revised Statutes, as the same may be amended,
superseded, or replaced by a successor section, statute, or provision. No amendment to these Articles of Incorporation, directly
or indirectly, by merger or consolidation or otherwise, having the effect of amending or repealing any provision of this Article
11 shall apply to or have any effect on any transaction involving acquisition of control by any person occurring prior to such
amendment or repeal.
ARTICLE 12 – COMBINATIONS WITH INTERESTED
STOCKHOLDERS
The Corporation elects not to be governed
by the terms and provisions of Section 78.411 through 78.444, inclusive, of the Nevada Revised Statutes, as the same may be amended,
superseded, or replaced by any successor section, statute, or provision. No amendment to these Articles of Incorporation, directly
or indirectly, by merger or consolidation or otherwise, having the effect of amending or repealing any provision of this Article
12 shall apply to or have any effect on any transaction with an interested stockholder occurring prior to such amendment or repeal.
APPENDIX
E
BYLAWS
OF
TMSR HOLDING COMPANY LIMITED
(the “Corporation”)
Adopted
on ___, 2018
ARTICLE
I
OFFICES
1.1
Registered
Office
. The registered office and registered agent of the Corporation shall be as from time to time set forth in the Corporation’s
Articles of Incorporation.
1.2
Other
Offices
. The Corporation may also have offices at such other places, both within and without the State of Nevada, as the Board
of Directors may from time to time determine or the business of the Corporation may require.
ARTICLE
II
STOCKHOLDERS
2.1
Place
of Meetings
. All meetings of the stockholders for the election of Directors shall be held at such place, within or without
the State of Nevada, as may be fixed from time to time by the Board of Directors. Meetings of stockholders for any other purpose
may be held at such time and place, within or without the State of Nevada, as shall be stated in the notice of the meeting or
in a duly executed waiver of notice thereof.
2.2
Annual
Meeting
. An annual meeting of the stockholders shall be held at such time as may be determined by the Board of Directors,
at which meeting the stockholders shall elect a Board of Directors and transact such other business as may properly be brought
before the meeting.
2.3
Special
Meetings
. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by law, by the Articles
of Incorporation or by these Bylaws, may be called by the Chief Executive Officer or the President, or shall be called by the
President or Secretary at the request in writing of a majority of the Board of Directors or at the request in writing of the holders
of a majority
of all the shares issued, outstanding and entitled to vote. Such request shall state the purpose or
purposes of the proposed meeting. Business transacted at all special meetings shall be confined to the purposes stated in the
notice of the meeting unless all stockholders entitled to vote are present and consent.
2.4
Notice
.
Written or printed notice stating the place, day and hour of any meeting of the stockholders and, in case of a special meeting,
the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than sixty days before
the date of the meeting, either personally or by mail, by or at the direction of the Chief Executive Officer, the President, the
Secretary, or the officer or person calling the meeting, to each stockholder of record entitled to vote at the meeting. If mailed,
such notice shall be deemed to be delivered when deposited in the mail, addressed to the stockholder at his address as it appears
on the stock transfer books and records of the Corporation or its transfer agent, with postage thereon prepaid.
2.5
List
of Stockholders
. At least ten days before each meeting of stockholders, a complete list of the stockholders entitled to vote
at such meeting, arranged in alphabetical order, with the address of and the number of voting shares registered in the name of
each, shall be prepared by the officer or agent having charge of the stock transfer books. Such list shall be kept on file at
the registered office of the Corporation (or at such other location determined by the Board of Directors) for a period of ten
days prior to such meeting and shall be subject to inspection by any stockholder at any time during usual business hours. Such
list shall be produced and kept open at the time and place of the meeting during the whole time thereof, and shall be subject
to the inspection of any stockholder who may be present.
2.6
Quorum
.
At all meetings of the stockholders, the presence in person or by proxy of the holders of one-third (1/3
rd
) of the
shares issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction
of business except as otherwise provided by law, by the Articles of Incorporation or by these Bylaws. If, however, such quorum
shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in
person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting. At such adjourned meeting at which a quorum shall be present or represented, any business
may be transacted which might have been transacted at the meeting as originally notified.
2.7
Voting
.
When a quorum is present at any meeting of the Corporation’s stockholders, the vote of the holders of a majority of the
shares having voting power present in person or represented by proxy at such meeting shall decide any questions brought before
such meeting, unless the question is one upon which, by express provision of law, the Articles of Incorporation or these Bylaws,
a different vote is required, in which case such express provision shall govern and control the decision of such question. The
stockholders present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
2.8
Method
of Voting
. Each outstanding share of the Corporation’s capital stock shall be entitled to one vote on each matter submitted
to a vote at a meeting of stockholders, except to the extent that the voting rights of the shares of any class or classes are
otherwise provided by applicable law or the Articles of Incorporation, as amended from time to time. At any meeting of the stockholders,
every stockholder having the right to vote shall be entitled to vote in person or by proxy appointed by an instrument in writing
subscribed by such stockholder or by his duly authorized attorney-in-fact and bearing a date not more than six months prior to
such meeting, unless such instrument provides for a longer period. Each proxy shall be revocable unless expressly provided therein
to be irrevocable and if, and only so long as, it is coupled with an interest sufficient in law to support an irrevocable power.
Such proxy shall be filed with the Secretary of the Corporation prior to or at the time of the meeting. Voting for directors shall
be in accordance with Article III of these Bylaws. Voting on any question or in any election may be by voice vote or show of hands
unless the presiding officer shall order or any stockholder shall demand that voting be by written ballot.
2.9
Record
Date; Closing Transfer Books
. The Board of Directors may fix in advance a record date for the purpose of determining stockholders
entitled to notice of or to vote at a meeting of stockholders, such record date to be not less than ten nor more than sixty days
prior to such meeting, or the Board of Directors may close the stock transfer books for such purpose for a period of not less
than ten nor more than sixty days prior to such meeting. In the absence of any action by the Board of Directors, the date upon
which the notice of the meeting is mailed shall be the record date.
2.10
Action
By Consent
. Any action required or permitted by law, the Articles of Incorporation, or these Bylaws to be taken at a meeting
of the stockholders of the Corporation may be taken without a meeting if a consent or consents in writing, setting forth the action
so taken, shall be signed by stockholders holding at least a majority of the voting power; provided that if a different proportion
of voting power is required for such an action at a meeting, then that proportion of written consents is required. Such signed
consents shall be delivered to the Secretary for inclusion in the Minute Book of the Corporation.
ARTICLE
III
BOARD OF DIRECTORS
3.1
Management
.
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, who may exercise
all such powers of the Corporation and do all such lawful acts and things as are not by law, the Articles of Incorporation, a
stockholders’ agreement or these Bylaws directed or required to be exercised or done by the stockholders.
3.2
Qualification;
Election; Term
. None of the directors need be a stockholder of the Corporation or a resident of the State of Nevada. The directors
shall be elected by plurality vote at the annual meeting of the stockholders, except as hereinafter provided, and each director
elected shall hold office until his successor shall be elected and qualified.
3.3
Number
.
The initial number of directors of the Corporation shall be one (1). Thereafter, the number of directors of the Corporation shall
be fixed as the Board of Directors may from time to time designate. No decrease in the number of directors shall have the effect
of shortening the term of any incumbent director.
3.4
Removal
.
Any director may be removed either for or without cause at any special meeting of stockholders by the affirmative vote of at least
two-thirds of the voting power of the issued and outstanding stock entitled to vote; provided, however, that notice of intention
to act upon such matter shall have been given in the notice calling such meeting.
3.5
Vacancies
.
Any vacancy occurring in the Board of Directors by death, resignation, removal or otherwise may be filled by an affirmative vote
of at least a majority of the remaining directors though less than a quorum of the Board of Directors. A director elected to fill
a vacancy shall be elected for the unexpired term of his predecessor in office. A directorship to be filled by reason of an increase
in the number of directors may be filled by the Board of Directors for a term of office only until the next election of one or
more directors by the stockholders.
3.6
Place
of Meetings
. Meetings of the Board of Directors, regular or special, may be held at such place within or without the State
of Nevada as may be fixed from time to time by the Board of Directors.
3.7
Annual
Meeting
. The first meeting of each newly elected Board of Directors shall be held without further notice immediately following
the annual meeting of stockholders and at the same place, unless by unanimous consent or unless the directors then elected and
serving shall change such time or place.
3.8
Regular
Meetings
. Regular meetings of the Board of Directors may be held without notice at such time and place as shall from time
to time be determined by resolution of the Board of Directors.
3.9
Special
Meetings
. Special meetings of the Board of Directors may be called by the Chief Executive Officer or President on oral or
written notice to each director, given either personally, by telephone, by telegram, by mail, by facsimile or by e-mail at least
forty-eight hours prior to the time of the meeting. Special meetings shall be called by the Chief Executive Officer, the President
or the Secretary in like manner and on like notice on the written request of two-thirds of directors. Except as may be otherwise
expressly provided by law, the Articles of Incorporation or these Bylaws, neither the business to be transacted at, nor the purpose
of, any special meeting need to be specified in a notice or waiver of notice.
3.10
Quorum
and Voting
. At all meetings of the Board of Directors the presence of a majority of the number of directors shall be necessary
and sufficient to constitute a quorum for the transaction of business, and the affirmative vote of at least a majority of the
directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise
specifically provided by law, the Articles of Incorporation or these Bylaws. If a quorum shall not be present at any meeting of
directors, the directors present thereat may adjourn the meeting from time to time without notice other than announcement at the
meeting, until a quorum shall be present.
3.11
Interested
Directors
. No contract or transaction between the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or
officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, solely because
the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes
the contract or transaction, or solely because his or their votes are counted for such purpose, if: (1) the fact as to his relationship
or interest and as to the contract or transaction is known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (2) the fact as to his relationship or interest and as to the
contract or transaction is known to the stockholders entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (3) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved, or ratified by the Board of Directors, a committee thereof, or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
3.12
Action
by Consent
. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without such
a meeting if a consent or consents in writing, setting forth the action so taken, is signed by all the members of the Board of
Directors.
3.13
Compensation
of Directors
. Directors shall receive such compensation for their services, and reimbursement for their expenses as the Board
of Directors, by resolution, shall establish; provided that nothing herein contained shall be construed to preclude any director
from serving the Corporation in any other capacity and receiving compensation therefor.
ARTICLE
IV
COMMITTEES
4.1
Designation
.
The Board of Directors may, by resolution passed by a majority of the whole Board, designate committees, each committee to consist
of one or more directors of the Corporation, which committees shall have such power and authority and shall perform such functions
as may be provided in such resolution.
4.2
Authority
.
Each committee, to the extent provided in such resolution, shall have and may exercise all of the authority of the Board of Directors
in the management of the business and affairs of the Corporation, except where action of the full Board of Directors is required
by statute or by the Articles of Incorporation.
4.3
Change
in Number
. The number of committee members may be increased or decreased (but not below one) from time to time by resolution
adopted by a majority of the whole Board of Directors.
4.4
Removal
.
Any committee member may be removed by the Board of Directors by the affirmative vote of a majority of the whole Board, whenever
in its judgment the best interests of the Corporation will be served thereby.
4.5
Vacancies
.
A vacancy occurring in any committee (by death, resignation, removal or otherwise) may be filled by the Board of Directors in
the manner provided for original designation in Section 4.1.
4.6
Meetings
.
The time, place and notice (if any) of all committee meetings shall be determined by the respective committee. Unless otherwise
determined by a particular committee, meetings of the committees may be called by the Chief Executive Officer or President on
oral or written notice to each member, given either personally, by telephone, by telegram, by mail, by facsimile or by e-mail
at least forty-eight hours prior to the time of the meeting and special meetings shall be called by the Chief Executive Officer,
the President or the Secretary in like manner and on like notice on the written request of any committee member. Neither the business
to be transacted at, nor the purpose of, any meeting need be specified in a notice or waiver of notice of any meeting.
4.7
Quorum;
Majority Vote
. Unless otherwise determined by a particular committee, at any meeting a majority of the committee members shall
constitute a quorum for the transaction of business and 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 statute or by the Articles of
Incorporation or by these Bylaws. If a quorum is not present at a meeting of the committee, the members present thereat may adjourn
the meeting from time to time, without notice other than an announcement at the meeting until a quorum is present.
4.8
Action
by Consent
. Any action required or permitted to be taken at any committee meeting may be taken without such a meeting if a
consent or consents in writing, setting forth the action so taken, is signed by all the members of such committee.
4.9
Compensation
.
Compensation of committee members shall be fixed pursuant to the provisions of Section 3.13.
ARTICLE
V
NOTICE
5.1
Form
of Notice
. Whenever required by law, the Articles of Incorporation or these Bylaws, notice is to be given to any director
or stockholder, and no provision is made as to how such notice shall be given, such notice may be given: (a) in writing, by mail,
postage prepaid, addressed to such director or stockholder at such address as appears on the books and records of the Corporation
or its transfer agent; or (b) in any other method permitted by law. Any notice required or permitted to be given by mail shall
be deemed to be given at the time when the same shall be deposited in the United States mail.
5.2
Waiver
.
Whenever any notice is required to be given to any stockholder or director of the Corporation as required by law, the Articles
of Incorporation or these Bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether
before or after the time stated in such notice, shall be equivalent to the giving of such notice. Attendance of a stockholder
or director at a meeting shall constitute a waiver of notice of such meeting, except where such stockholder or director attends
for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called
or convened.
ARTICLE
VI
OFFICERS AND AGENTS
6.1
In
General
. The officers of the Corporation shall be elected by the Board of Directors and shall be a Chairman of the Board of
Directors, a President, a Treasurer and a Secretary. The Board of Directors may also elect a Chairman of the Board, a Chief Executive
Officer, a Chief Operating Officer, a Chief Financial Officer, and one or more Vice Presidents, Assistant Vice Presidents, Assistant
Secretaries and Assistant Treasurers. None of the officers need be a member of the Board of Directors. Any two or more offices
may be held by the same person.
6.2
Election
.
The Board of Directors, at its first meeting after each annual meeting of stockholders, shall elect a President, a Treasurer,
a Secretary and such other officers and agents as it shall deem necessary, who shall be elected and appointed for such terms and
shall exercise such powers and perform such duties as shall be determined from time to time by the Board.
6.3
Salaries
.
The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors or any committee of the Board,
if so authorized by the Board.
6.4
Term
of Office and Removal
. Each officer of the Corporation shall hold office until his death, or his resignation or removal from
office, or the election and qualification of his successor, whichever shall first occur. Any officer or agent elected or appointed
by the Board of Directors may be removed at any time, for or without cause, by the affirmative vote of a majority of the whole
Board of Directors, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. If the
office of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors.
6.5
Employment
and Other Contracts
. The Board of Directors may authorize any officer or officers or agent or agents to enter into any contract
or execute and deliver any instrument in the name or on behalf of the Corporation, and such authority may be general or confined
to specific instances. The Board of Directors may, when it believes the interest of the Corporation will best be served thereby,
authorize executive employment contracts which will contain such terms and conditions as the Board of Directors deems appropriate.
6.6
Chairman
of the Board
. The Chairman of the Board, subject to the direction of the Board of Directors, shall perform such executive,
supervisory and management functions and duties as from time to time may be assigned to him or her by the Board of Directors.
The Chairman of the Board shall preside at all meetings of the stockholders of the Corporation and all meetings of the Board of
Directors.
6.7
Chief
Executive Officer
. The Chief Executive Officer shall have general and active management of the business of the Corporation
and shall see that all orders and resolutions of the Board of Directors are carried into effect. The Chief Executive Officer shall
preside at all meetings of the stockholders of the Corporation and all meetings of the Board of Directors in the absence of the
Chairman of the Board.
6.8
President
.
The President shall be subject to the direction of the Board of Directors and the Chief Executive Officer and shall have general
charge of the business, affairs and property of the Corporation and general supervision over its other officers and agents. The
President shall see that the officers carry all other orders and resolutions of the Board of Directors into effect. The President
shall execute all authorized conveyances, contracts, or other obligations in the name of the Corporation except where required
by law to be otherwise signed and executed and except where the signing and execution shall be expressly delegated by the Board
of Directors to some other officer or agent of the Corporation or reserved to the Board of Directors or any committee thereof.
The President shall preside at all meetings of the stockholders of the Corporation and all meetings of the Board of Directors
in the absence of the Chairman of the Board and the Chief Executive Officer. The President shall perform all duties incident to
the office of the President and such other duties as may be prescribed by the Board of Directors from time to time.
6.9
Chief
Operating Officer
. The Chief Operating Officer shall be subject to the direction of the Chief Executive Officer, the President
and the Board of Directors and shall have day-to-day managerial responsibility for the operation of the Corporation.
6.10
Chief
Financial Officer
. The Chief Financial Officer shall be subject to the direction of the Chief Executive Officer, the President
and the Board of Directors and shall have day-to-day managerial responsibility for the finances of the Corporation.
6.11
Vice
Presidents
. Each Vice President shall have such powers and perform such duties as the Board of Directors or any committee
thereof may from time to time prescribe, or as the President may from time to time delegate to him. In the absence or disability
of the President, any Vice President may perform the duties and exercise the powers of the President.
6.12
Secretary
.
The Secretary shall attend all meetings of the stockholders and record all votes and the minutes of all proceedings in a book
to be kept for that purpose. The Secretary shall perform like duties for the Board of Directors when required. He shall give,
or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors and shall perform
such other duties as may be prescribed by the Board of Directors under whose supervision he shall be. He shall keep in safe custody
the seal of the Corporation. He shall be under the supervision of the President. He shall perform such other duties and have such
other authority and powers as the Board of Directors may from time to time prescribe or as the President may from time to time
delegate.
6.13
Assistant
Secretaries
. Each Assistant Secretary shall have such powers and perform such duties as the Board of Directors may from time
to time prescribe or as the President may from time to time delegate to him.
6.14
Treasurer
.
The Treasurer shall have the custody of all corporate funds and securities, shall keep full and accurate accounts of receipts
and disbursements of the Corporation, and shall deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Corporation
as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, shall render to the Directors, at
the regular meetings of the Board of Directors, or whenever they may require it, an account of all his transactions as Treasurer
and of the financial condition of the Corporation, and shall perform such other duties as the Board of Directors may prescribe
or the President may from time to time delegate.
6.15
Assistant
Treasurers
. Each Assistant Treasurer shall have such powers and perform such duties as the Board of Directors may from time
to time prescribe or as the President may from time to time delegate to him.
6.16
Bonding
.
If required by the Board of Directors, all or certain of the officers shall give the Corporation a bond, in such form, in such
sum, and with such surety or sureties as shall be satisfactory to the Board of Directors, for the faithful performance of the
duties of their office and for the restoration to the Corporation, in case of their death, resignation, retirement 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.
ARTICLE
VII
CERTIFICATES OF SHARES
7.1
Form
of Certificates
. The Corporation may, but is not required to, deliver to each stockholder a certificate or certificates, in
such form as may be determined by the Board of Directors, representing shares to which the stockholder is entitled. Such certificates
shall be consecutively numbered and shall be registered on the books and records the Corporation or its transfer agent as they
are issued. Each certificate shall state on the face thereof the holder’s name, the number, class of shares, and the par
value of such shares or a statement that such shares are without par value.
7.2
Shares
without Certificates
. The Board of Directors may authorize the issuance of uncertificated shares of some or all of the shares
of any or all of its classes or series. The issuance of uncertificated shares has no effect on existing certificates for shares
until surrendered to the Corporation, or on the respective rights and obligations of the stockholders. Unless otherwise provided
by the Nevada Revised Statutes, the rights and obligations of stockholders are identical whether or not their shares of stock
are represented by certificates. Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation
shall send the stockholder a written statement containing the information required on the certificates pursuant to Section 7.1.
At least annually thereafter, the Corporation shall provide to its stockholders of record, a written statement confirming the
information contained in the informational statement previously sent pursuant to this Section.
7.3
Lost
Certificates
. The Board of Directors may direct that a new certificate be issued, or that uncertificated shares be issued,
in place of any certificate theretofore issued by the Corporation alleged to have been lost or destroyed, upon the making of an
affidavit of that fact by the person claiming the certificate to be lost or destroyed. When authorizing such issue of a new certificate
or uncertificated shares, the Board of Directors, in its discretion and as a condition precedent to the issuance thereof, may
require the owner of such lost or destroyed certificate, or his legal representative, to advertise the same in such manner as
it shall require and/or to give the Corporation a bond, in such form, in such sum, and with such surety or sureties as it may
direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have
been lost or destroyed. When a certificate has been lost, apparently destroyed or wrongfully taken, and the holder of record fails
to notify the Corporation within a reasonable time after he has notice of it, and the Corporation registers a transfer of the
shares represented by the certificate before receiving such notification, the holder of record is precluded from making any claim
against the Corporation for the transfer or a new certificate or uncertificated shares.
7.4
Transfer
of Shares
. Shares of stock shall be transferable only on the books of the Corporation or its transfer agent by the holder
thereof in person or by his duly authorized attorney. Upon surrender to the Corporation or the transfer agent of the Corporation
of a certificate representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation or the transfer agent of the Corporation to issue a new certificate to the person
entitled thereto, cancel the old certificate and record the transaction upon its books.
7.5
Registered
Stockholders
. The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder
in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or
shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided
by law.
ARTICLE
VIII
GENERAL PROVISIONS
8.1
Dividends
.
Dividends upon the outstanding shares of the Corporation, subject to the provisions of the Articles of Incorporation, if any,
may be declared by the Board of Directors at any regular or special meeting. Dividends may be declared and paid in cash, in property,
or in shares of the Corporation, subject to the provisions of the Nevada Revised Statutes and the Articles of Incorporation. The
Board of Directors may fix in advance a record date for the purpose of determining stockholders entitled to receive payment of
any dividend, such record date to be not more than sixty days prior to the payment date of such dividend, or the Board of Directors
may close the stock transfer books for such purpose for a period of not more than sixty days prior to the payment date of such
dividend. In the absence of any action by the Board of Directors, the date upon which the Board of Directors adopts the resolution
declaring such dividend shall be the record date.
8.2
Reserves
.
There may be created by resolution of the Board of Directors out of the surplus of the Corporation such reserve or reserves as
the directors from time to time, in their discretion, think proper to provide for contingencies, or to equalize dividends, or
to repair or maintain any property of the Corporation, or for such other purpose as the directors shall think beneficial to the
Corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. Surplus of the Corporation
to the extent so reserved shall not be available for the payment of dividends or other distributions by the Corporation.
8.3
Telephone
and Similar Meetings
. Stockholders, directors and committee members may participate in and hold a meeting by means of conference
telephone or similar communications equipment by which all persons participating in the meeting can hear each other. Participation
in such 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 is not lawfully called or convened.
8.4
Books
and Records
. The Corporation shall keep correct and complete books and records of account and minutes of the proceedings of
its stockholders and Board of Directors, and shall keep at its registered office or principal place of business, or at the office
of its transfer agent or registrar, a record of its stockholders, giving the names and addresses of all stockholders and the number
and class of the shares held by each.
8.5
Checks
and Notes
. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time designate.
8.6
Loans
.
No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its name unless authorized
by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
8.7
Fiscal
Year
. The fiscal year of the Company shall be fixed by resolution of the Board of Directors.
8.8
Seal
.
The Corporation may have a seal, and such seal may be used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. Any officer of the Corporation shall have authority to affix the seal to any document requiring it.
8.9
Indemnification
.
The Corporation shall indemnify its directors and officers to the fullest extent permitted by the Nevada Revised Statutes and
may, if and to the extent authorized by the Board of Directors, so indemnify any other person whom it has the power to indemnify
against liability, reasonable expense or other matter whatsoever.
8.10
Insurance
.
The Corporation may at the discretion of the Board of Directors purchase and maintain insurance on behalf of any person who holds
or who has held any position identified in Section 8.9 against any and all liability incurred by such person in any such position
or arising out of his status as such.
8.11
Resignation
.
Any director, officer or agent may resign by giving written notice to the President or the Secretary. Such resignation shall take
effect at the time specified therein or immediately if no time is specified therein. Unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
8.12
Off-Shore
Offerings
. In all offerings of securities pursuant to Regulation S of the Securities Act of 1933, as amended (the “Act”),
the Corporation shall require that its stock transfer agent refuse to register any transfer of securities not made in accordance
with the provisions of Regulation S, pursuant to registration under the Act or an available exemption thereunder.
8.13
Amendment
of Bylaws
. The Board of Directors shall have power to amend, modify or repeal these Bylaws, or adopt any new provision.
8.14
Invalid
Provisions
. If any part of these Bylaws shall be held invalid or inoperative for any reason, the remaining parts, so far as
possible and reasonable, shall be valid and operative.
8.15
Relation
to Articles of Incorporation
. These Bylaws are subject to, and governed by, the Articles of Incorporation.
APPENDIX
F
CURRENT
CERTIFICATE OF INCORPORATION OF THE COMPANY
SECOND
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TMSR HOLDING COMPANY LIMITED
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
JM GLOBAL HOLDING COMPANY
JM Global Holding Company, a corporation
organized and existing under the laws of the State of Delaware (the “
Corporation
”), DOES HEREBY CERTIFY
AS FOLLOWS:
|
1.
|
The name of the Corporation is “JM Global Holding Company”. The original certificate of incorporation was filed
with the Secretary of State of the State of Delaware on April 10, 2015 (the “
Original Certificate
”).
|
|
2.
|
This Second Amended and Restated Certificate of Incorporation (the “
Second Amended and Restated Certificate
”)
was duly adopted by the Board of Directors of the Corporation (the “
Board
”) and the stockholders of the
Corporation in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware.
|
|
3.
|
This Second Amended and Restated Certificate amends and restates the provisions of the Original Certificate.
|
|
4.
|
Certain capitalized terms used in this Second Amended and Restated Certificate are defined where appropriate herein.
|
|
5.
|
The text of the Original Certificate is hereby restated and amended in its entirety to read as follows:
|
Article I. NAME
The name of the corporation is TMSR Holding
Company Limited.
Article II. PURPOSE
The purpose of the Corporation is to engage
in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware
(the “
DGCL
”). In addition to the powers and privileges conferred upon the Corporation by law and those
incidental thereto, the Corporation shall possess and may exercise all the powers and privileges that are necessary or convenient
to the conduct, promotion or attainment of the business or purposes of the Corporation including, but not limited to, effecting
a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or
more businesses (a “
Business Combination
”).
Article III. REGISTERED AGENT
The address of the registered office of the
Corporation in the State of Delaware is 251 Little Falls Drive, City of Wilmington, County of New Castle, State of Delaware 19808,
and the name of the Corporation’s registered agent at such address is Corporation Service Company.
Article IV. CAPITALIZATION
Section 4.01
Authorized Capital Stock
.
The total number of shares of all classes of capital stock which the Corporation is authorized to issue is 110,000,000 shares,
consisting of 100,000,000 shares of common stock, par value $0.0001 per share (the “
Common Stock
”), and
10,000,000 shares of preferred stock, par value $0.0001 per share (the “
Preferred Stock
”).
Section 4.02
Preferred Stock
. The
Preferred Stock may be issued from time to time in one or more series. The Board is hereby expressly authorized to provide for
the issuance of shares of the Preferred Stock in one or more series and to establish from time to time the number of shares to
be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating,
optional and other special rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as
shall be stated in the resolution or resolutions adopted by the Board providing for the issuance of such series and included in
a certificate of designation (a “
Preferred Stock Designation
”) filed pursuant to the DGCL, and the Board
is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any such resolution
or resolutions.
Section 4.03
Common Stock
.
(a) The Board is hereby expressly authorized
to provide for the issuance of shares of Common Stock from time to time. The holders of shares of Common Stock shall be entitled
to one vote for each such share on each matter properly submitted to the stockholders on which the holders of the Common Stock
are entitled to vote. Except as otherwise required by law or this Second Amended and Restated Certificate, or in any Preferred
Stock Designation, at any annual or special meeting of the stockholders of the Corporation, the holders of the Common Stock shall
have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders.
Notwithstanding the foregoing, except as otherwise required by law or this Second Amended and Restated Certificate, or in a Preferred
Stock Designation, the holders of the Common Stock shall not be entitled to vote on any amendment to this Second Amended and Restated
Certificate or any amendment to any Preferred Stock Designation that relates solely to the terms of one or more outstanding series
of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or
more other such series, to vote thereon pursuant to this Second Amended and Restated Certificate or any Preferred Stock Designation.
(b) Subject to the rights, if any, of the
holders of any outstanding series of Preferred Stock and any other provisions of this Second Amended and Restated Certificate,
as it may be amended from time to time, the holders of Common Stock shall be entitled to receive ratably such dividends and other
distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from
time to time out of any assets or funds of the Corporation legally available therefor.
(c) Subject to the rights, if any, of the
holders of any outstanding series of the Preferred Stock and any other provisions of this Second Amended and Restated Certificate,
as it may be amended from time to time, in the event of any voluntary or involuntary liquidation, dissolution or winding-up of
the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of the
Common Stock shall be entitled to receive ratably all the remaining assets of the Corporation available for distribution to its
stockholders.
Section 4.04
Rights and Options
. The
Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to purchase shares
of any class or series of the Corporation’s capital stock or other securities of the Corporation, and such rights, warrants
and options shall be evidenced by instrument(s) approved by the Board. The Board is hereby expressly authorized to provide for
the issuance of such rights, warrants and options and to establish from time to time the number of such rights, warrants and options
to be issued and to fix the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants
or options; provided
,
however, that the consideration to be received for any shares of capital stock subject thereto may
not be less than the par value thereof.
Article V. BOARD OF DIRECTORS
Section 5.01
Board Powers
. The business
and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority
expressly conferred upon the Board by statute, this Second Amended and Restated Certificate or the Bylaws (“
Bylaws
”)
of the Corporation, the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised
or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Second Amended and Restated Certificate
and any Bylaws adopted by the stockholders.
Section 5.02
Number, Election and Term.
(a) The number of directors of the Corporation,
other than those who may be elected by the holders of one or more series of the Preferred Stock voting separately by class or series,
shall be fixed from time to time exclusively by the Board pursuant to a resolution adopted by a majority of the Board.
(b) [Reserved.]
(c) Subject to Section 5.05 hereof, a director
shall hold office until the next annual meeting of stockholders and until his or her successor has been elected and qualified,
subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.
(d) Unless and except to the extent that
the Bylaws shall so require, the election of directors need not be by written ballot.
Section 5.03
Newly Created Directorships
and Vacancies
. Subject to Section 5.05 hereof, newly created directorships resulting from an increase in the number of directors
and any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal or other cause may be filled
solely by a majority vote of the remaining directors then in office, even if less than a quorum, or by a sole remaining director
(and not by stockholders), and any director so chosen shall hold office the next annual meeting of stockholders and until his or
her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement,
disqualification or removal.
Section 5.04
Removal
. Subject to Section
5.05 hereof, any or all of the directors may be removed from office at any time, but only for cause and only by the affirmative
vote of holders of a majority of the then outstanding shares of capital stock of the Corporation entitled to vote generally in
the election of directors, voting together as a single class.
Section 5.05
Preferred Stock — Directors
.
Notwithstanding any other provision of this Article V, and except as otherwise required by law, whenever the holders of one or
more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors,
the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed
by the terms of such series of the Preferred Stock as set forth in this Second Amended and Restated Certificate or any Preferred
Stock Designation.
Article VI. BYLAWS
In furtherance and not in limitation of the
powers conferred upon it by law, 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 upon obtaining (i) the affirmative vote of the holders of at least a majority 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, and (ii) any other vote of the holders of any class or series of capital stock of the Corporation required by applicable
law or by this Second Amended and Restated Certificate or any Preferred Stock Designation; provided, however, that no Bylaws hereafter
adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been
adopted.
Article VII. MEETINGS OF STOCKHOLDERS;
ACTION BY WRITTEN CONSENT
Section 7.01
Meetings
. Subject to
the rights of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law, special
meetings of stockholders of the Corporation may be called only by the Chairman of the Board, Chief Executive Officer or President
of the Corporation, or the Board pursuant to a resolution adopted by a majority of the Board, and the stockholders shall have no
right to call a special meeting.
Section 7.02
Advance Notice
. Advance
notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting
of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.
Section 7.03
Action by Written Consent
.
Subsequent to the consummation of the Corporation’s initial public offering of securities (the “
Offering
”),
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 holders and may not be effected by written consent of the stockholders.
Article VIII. LIMITED LIABILITY; INDEMNIFICATION
Section 8.01
Limitation of Director Liability
.
A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as
the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely
affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to
the time of such amendment, modification or repeal.
Section 8.02
Indemnification and Advancement
of Expenses
.
(a) 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 is or was
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 (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 (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. The Corporation shall to the fullest extent not prohibited
by applicable law pay the expenses (including attorneys’ fees) incurred by an indemnitee in defending or otherwise participating
in any proceeding in advance of its final disposition;
provided
,
however
, that, to the extent required by applicable
law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking,
by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is
not entitled to be indemnified under this Section 8.02 or otherwise. The rights to indemnification and advancement of expenses
conferred by this Section 8.02 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be
a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding
the foregoing provisions of this Section 8.02(a), except for proceedings to enforce rights to indemnification and advancement of
expenses, the Corporation shall indemnify and advance expenses to 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.
(b) The rights to indemnification and advancement
of expenses conferred on any indemnitee by this Section 8.02 shall not be exclusive of any other rights that any indemnitee may
have or hereafter acquire under law, this Second Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders
or disinterested directors, or otherwise.
(c) Any repeal or amendment of this Section
8.02 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Second Amended
and Restated Certificate inconsistent with this Section 8.02, shall, unless otherwise required by law, be prospective only (except
to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive
basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at
the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when
such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior
to such repeal or amendment or adoption of such inconsistent provision.
(d) This Section 8.02 shall not limit the
right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnity and to advance expenses
to persons other than indemnitees.
Article IX. CORPORATE OPPORTUNITY
The doctrine of corporate opportunity, or
any other analogous doctrine, shall not apply with respect to the Corporation or any of its officers or directors or in circumstances
where the application of any such doctrine would conflict with any of his or her current or future fiduciary duties or contractual
obligations.
Article X. AMENDMENT OF SECOND AMENDED
AND RESTATED
CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Second Amended and Restated Certificate or any Preferred Stock Designation,
in the manner now or hereafter prescribed by this Second Amended and Restated Certificate and the DGCL; and, except as set forth
in
Article VIII
, all rights, preferences and privileges herein conferred upon stockholders, directors or any other persons
by and pursuant to this Second Amended and Restated Certificate in its present form or as hereafter amended are granted subject
to the right reserved in this
Article X
.
Article XI. EXCLUSIVE JURISDICTION
Section 11.1 Exclusive Forum. Unless the
Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall
be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding
brought or purporting to be brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty
owed by any current or former director, officer or other employee of the Corporation to the Corporation or the Corporation’s
stockholders, (iii) any action asserting a claim against the Corporation, its current or former directors, officers or employees
arising pursuant to any provision of the DGCL or this Second Amended and Restated Certificate or the Corporation’s Bylaws,
or (iv) any action asserting a claim against the Corporation or any of its current or former directors, officers, employees or
agents governed by the internal affairs doctrine.
Section 11.2 Personal Jurisdiction. If any
action the subject matter of which is within the scope of Section 11.1 immediately above is filed in a court other than a court
located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be
deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within the State of Delaware
in connection with any action brought in any such court to enforce Section 11.1 immediately above (an “FSC Enforcement Action”)
and (ii) having service of process made upon such stockholder in any such FSC Enforcement Action by service upon such stockholder’s
counsel in the Foreign Action as agent for such stockholder. Any person or entity purchasing or otherwise acquiring any interest
in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this ARTICLE
XI.
[Remainder of page is
intentionally left blank]
IN WITNESS WHEREOF, JM Global Holding Company
has caused this Second Amended and Restated Certificate of Incorporation to be duly executed in its name and on its behalf as of
the 6
th
day of February, 2018.
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JM GLOBAL HOLDING COMPANY
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|
By:
|
/s/ Tim Richerson
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Name: Tim Richerson
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Title: Chief Executive Officer
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[Signature Page to Second Amended and Restated
Certificate of Incorporation]
APPENDIX
G
CURRENT
BYLAWS OF THE COMPANY
BY-LAWS
Of
TMSR
HOLDING COMPANY LIMITED
BY-LAWS
OF
JM
GLOBAL HOLDING COMPANY
(THE “CORPORATION”)
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, 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 Certificate of Incorporation, as
the same may be amended or restated from time to time (the “
Certificate of Incorporation
”) or these
By Laws, the presence, in person or by proxy, at a stockholders meeting of the holders of shares of outstanding capital stock
of the Corporation representing a majority 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 a
majority 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 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 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.
If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during
the whole time thereof, and may be inspected by any stockholder who is present. If a meeting of stockholders is to be held
solely by means of remote communication as permitted by
Section 9.5(a)
, the list shall be open to the examination of
any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of meeting. The stock ledger shall be the only evidence as to
who are the stockholders entitled to examine the list required by this
Section 2.5(a)
or to vote in person or by proxy
at any meeting of stockholders.
(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 of the Corporation 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.
(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 By Laws or applicable stock exchange rules, a different vote is required, in which case such provision
shall govern and control the decision of such matter.
(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.
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)
.
Notwithstanding anything in this
Section 2.7(a)
to the contrary, only persons nominated for election as a director to fill
any term of a directorship that expires on the date of the annual meeting pursuant to
Section 3.2
will be considered for
election at such meeting.
(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 of the Corporation 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 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 By
Laws, 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 By Laws, “
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 By Laws
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
. Unless otherwise provided by the Certificate of Incorporation, and subject to the proviso
in
Section 2.1,
until the corporation consummates an initial public offering (“
Offering
”), any
action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or
special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum
number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon
were present and voted, and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified
or registered mail, return receipt requested.
Every
written consent shall bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective
to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner
required by this section and Delaware Law to the Corporation, written consents signed by a sufficient number of holders to take
action are delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business or an
officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt
requested.
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 By Laws 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 shall be eligible for election as directors 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 or (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 on the record date for the determination of stockholders
entitled to vote at such meeting and (y) who complies with the notice procedures set forth in this
Section
3.2
.
(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 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 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; and (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.
(e)
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
, 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 the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein.
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.
Section
3.3. Compensation
. Unless otherwise restricted by the Certificate of Incorporation or these By Laws, 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 By Laws, 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 By Laws. 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 By Laws, 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 By Laws 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 By Laws, 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 By Laws.
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 By Laws 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 Company (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 By Laws otherwise provide. 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.
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
Delaware General Corporation Law (“
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 By Laws, 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 By Laws 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 By Laws 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 By Laws 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 By Laws 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 By Laws 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 By Laws, 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
By Laws, 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 By Laws, 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 to vote on matters submitted to the stockholders, including
an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (C) if
any stockholder or 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 By Laws, 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 By Laws, 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 By Laws. Except with respect to Article
VIII, the affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the By Laws. The By Laws
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 By Laws.
TMSR
HOLDING COMPANY LIMITED.
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON APRIL [ ], 2018