Attached files
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
NOVUME SOLUTIONS, INC.
NOVUME
SOLUTIONS, INC. a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware,
hereby certifies as follows:
FIRST:
The name of the corporation is Novume Solutions, Inc. (hereinafter
referred to as the “Corporation”). The
Corporation was originally incorporated pursuant to the original
Certificate of Incorporation of the Corporation (the
“Original Certificate of Incorporation”) filed with the
office of the Secretary of State of the State of Delaware on
February 6, 2017.
SECOND:
This Amended and Restated Certificate of Incorporation (this
“Certificate of Incorporation”) was duly adopted by the
Board of Directors of the Corporation (the “Board of
Directors”) in accordance with Section 242 and Section 245 of
the DGCL.
THIRD:
This Certificate of Incorporation restates and integrates and
further amends the Original Certificate of Incorporation, as
heretofore amended or supplemented.
FOURTH:
The text of the Original Certificate of Incorporation is amended
and restated in its entirety as follows:
ARTICLE I
NAME
The
name of the corporation is Novume Solutions, Inc. (the
“Corporation”).
ARTICLE II
REGISTERED AGENT AND ADDRESS
The
address of the registered office of the Corporation in the State of
Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, New Castle County, 19801. The name of its registered
agent at that address is The Corporation Trust
Company.
ARTICLE III
PURPOSE
The
purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware (the
“DGCL”).
ARTICLE IV
CAPITAL STOCK
Section 4.1 Shares, Classes and
Series Authorized. This Corporation is authorized to
issue two classes of stock to be designated, respectively,
“Common Stock” and “Preferred Stock”. The
total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is Thirty-Two Million
(32,000,000) shares, of which Thirty Million
(30,000,000) shares shall be designated as Common Stock with a
par value of $0.0001 per share, and Two Million
(2,000,000) shares shall be designated as Preferred Stock with
a par value of $0.0001 per share. The Common Stock and Preferred
Stock may be collectively referred to herein as the “Capital
Stock.”
Section 4.2 Designations, Powers,
Preferences, Rights, Qualifications, Limitations and Restrictions
Relating to the Capital Stock. The following is a statement
of the designations, powers, preferences and rights in respect of
the classes of the Capital Stock, and the qualifications,
limitations or restrictions thereof, and of the authority with
respect thereto expressly vested in the Board of Directors of the
Corporation (the “Board”):
(a)
Preferred Stock. The
Preferred Stock may be issued from time to time in one or more
series, the number of shares and any designation of each series and
the powers, preferences and rights of the shares of each series,
and the qualifications, limitations or restrictions thereof, to be
as stated and expressed in a resolution or resolutions providing
for the issue of such series adopted by the Board. The Board in any
such resolution or resolutions is expressly authorized to state for
each such series:
(i) the
voting powers, if any, of the holders of shares of such series in
addition to any voting rights affirmatively required by
law;
(ii)
the rights of stockholders in respect of dividends, including,
without limitation, the rate or rates per annum and the time or
times at which (or the formula or other method pursuant to which
such rate or rates and such time or times may be determined) and
conditions upon which the holders of shares of such series shall be
entitled to receive dividends and other distributions, and whether
any such dividends shall be cumulative or non-cumulative and, if
cumulative, the terms upon which such dividends shall be
cumulative;
(iii)
whether any shares of the stock of each such series shall be
redeemable by the Corporation at the option of the Corporation or
the holder thereof and, if redeemable, the terms and conditions
upon which any shares of the stock of such series may be
redeemed;
(iv)
the amount payable and the rights or preferences to which the
holders of the stock of such series shall be entitled upon any
voluntary or involuntary liquidation, dissolution or winding up of
the Corporation;
(v) the
terms, if any, upon which shares of stock of such series shall be
convertible into, or exchangeable for, shares of stock of any other
class or classes or of any other series of the same or any other
class or classes, including the price or prices or the rate or
rates of conversion or exchange and the terms of adjustment, if
any; and
(vi)
any other powers, designations, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, so far as they
are not inconsistent with the provisions of this Amended and
Restated Certificate of Incorporation (“Certificate of
Incorporation”) and to the full extent now or hereafter
permitted by the laws of the State of Delaware.
Subject
to any limitations or restrictions stated in the resolution or
resolutions of the Board originally fixing the number of shares
constituting a series, the Board may by resolution or resolutions
likewise adopted increase (but not above the total number of
authorized shares of Preferred Stock) or decrease (but not below
the number of shares of the series then outstanding) the number of
shares of the series subsequent to the issue of shares of that
series; and, in case the number of shares of any series shall be so
decreased, the shares constituting the decrease shall resume that
status that they had prior to the adoption of the resolution
originally fixing the number of shares constituting such
series.
(b)
Common Stock. Except as
otherwise provided for by law, the shares of Common Stock shall
entitle the holders thereof to one vote for each share on all
matters on which shareholders have the right to vote. The holders
of shares of Common Stock shall not be permitted to cumulate their
votes for the election of directors. Notwithstanding the foregoing,
except as otherwise required by law, holders of Common Stock, as
such, shall not be entitled to vote on
any amendment to this Certificate of Incorporation (including any
Certificate of Designations relating to any series of Preferred
Stock) 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
Certificate of Incorporation (including any Certificate of
Designations relating to any series of Preferred Stock) or pursuant
to the DGCL.
Subject
to the preferences, privileges and powers with respect to each
class or series of Preferred Stock having any priority over the
Common Stock, and the qualifications, limitations or restrictions
thereof, the holders of the Common Stock shall have and possess all
rights pertaining to the Capital Stock; provided, however, that in the event of
any liquidation, dissolution, or winding up of the Corporation, the
holders of the Common Stock (and the holders of any class or series
of stock entitled to participate with the Common Stock in the
distribution of assets) shall be entitled to receive, in cash or in
kind, the assets of the Corporation available for distribution
remaining after: (i) payment or provision for payment of the
Corporation’s debts and liabilities and
(ii) distributions or provisions for distributions to holders
of any class or series of Capital Stock having preference over the
Common Stock in the liquidation, dissolution, or winding up of the
Corporation.
ARTICLE V
LIMITATION OF DIRECTOR LIABILITY
No
director shall be personally liable to the Corporation or any of
its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability (i) for any breach of the
director’s duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law,
(iii) pursuant to Section 174 of the DGCL or
(iv) for any transaction from which the director derived an
improper personal benefit. If the DGCL is amended to authorize the
further elimination or limitation of the liability of a director,
then the liability of the directors shall be eliminated or limited
to the fullest extent permitted by the DGCL, as so amended. Any
repeal or modification of this Article V by the stockholders
of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of
such repeal or modification with respect to acts or omissions
occurring prior to such repeal or modification.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Actions, Suits or Proceedings
Other than by or in the Right of the Corporation To the
fullest extent permitted by the DGCL, the Corporation shall
indemnify any person who is or was or has agreed to become a
director or officer of the Corporation who was or is made a party
to or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he or she is
or was or has agreed to become a director or officer of the
Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been
taken or omitted in such capacity, and the Corporation may
indemnify any other person who is or was or has agreed to become an
employee or agent of the Corporation who was or is made a party to
or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he or she is
or was or has agreed to become an employee or agent of the
Corporation, or is or was serving or has agreed to serve at the
request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action alleged to have been
taken or omitted in such capacity, against costs, charges, expenses
(including attorneys’ fees and expenses), judgments, fines
and amounts paid in settlement actually and reasonably incurred by
him or her or on his or her behalf in connection with such action,
suit or proceeding and any appeal therefrom, if he or she acted in
good faith and in a manner he or she reasonably believed to be in,
or not opposed to, the best interests of the Corporation and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he or she reasonably
believed to be in, or not opposed to, the best interests of the
Corporation and, with respect to any criminal action or proceeding,
had reasonable cause to
believe
that his or her conduct was unlawful. Notwithstanding anything
contained in this Article
VI, but subject to Section 6.7 hereof, the
Corporation shall not be obligated to indemnify any director or
officer in connection with an action, suit or proceeding, or part
thereof, initiated by such person against the Corporation unless
such action, suit or proceeding, or part thereof, was authorized or
consented to by the Board.
Section 6.2 Actions or Suits by or in the
Right of the Corporation To the fullest extent permitted by
the DGCL, the Corporation shall indemnify any person who is or was
or has agreed to become a director or officer of the Corporation
who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of
the fact that he or she is or was or has agreed to become a
director or officer of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity, and
the Corporation may indemnify any other person who is or was or has
agreed to become an employee or agent of the Corporation who was or
is made a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right
of the Corporation to procure a judgment in its favor by reason of
the fact that he or she is or was or has agreed to become an
employee or agent of the Corporation, or is or was serving or has
agreed to serve at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, or by reason of any
action alleged to have been taken or omitted in such capacity,
against costs, charges and expenses (including attorneys’
fees and expenses) actually and reasonably incurred by him or her
or on his or her behalf in connection with the defense or
settlement of such action or suit and any appeal therefrom, if he
or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the
Corporation, except no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the
extent that the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
such liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such
costs, charges and expenses which the court shall deem proper.
Notwithstanding anything contained in this Article VI, but subject to
Section 6.7
hereof, the Corporation shall not be obligated to indemnify any
director or officer in connection with an action or suit, or part
thereof, initiated by such person against the Corporation unless
such action or suit, or part thereof, was authorized or consented
to by the Board.
Section 6.3 Indemnification for Costs,
Charges and Expenses of a Successful Party To the extent
that a present or former director or officer of the Corporation has
been successful, on the merits or otherwise (including, without
limitation, the dismissal of an action without prejudice), in
defense of any action, suit or proceeding referred to in
Section 6.1 or
6.2, or in defense
of any claim, issue or matter therein, such person shall be
indemnified against all costs, charges and expenses (including
attorneys’ fees and expenses) actually and reasonably
incurred by such person or on such person’s behalf in
connection therewith.
Section 6.4 Indemnification for Expenses
of a Witness To the extent that any person who is or was or
has agreed to become a director or officer of the Corporation is
made a witness to any action, suit or proceeding to which he or she
is not a party by reason of the fact that he or she was, is or has
agreed to become a director or officer of the Corporation, or is or
was serving or has agreed to serve as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust
or other enterprise, at the request of the Corporation, such person
shall be indemnified against all costs, charges and expenses
actually and reasonably incurred by such person or on such
person’s behalf in connection therewith.
To the
extent that any person who is or was or has agreed to become an
employee or agent of the Corporation is made a witness to any
action, suit or proceeding to which he or she is not a party by
reason of the fact that he or she was, is or has agreed to become
an employee or agent of the Corporation, or is or was serving or
has agreed to serve as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, at the request of the Corporation, such person may be
indemnified against all costs, charges and expenses actually and
reasonably incurred by such person or on such person’s behalf
in connection therewith.
Section 6.5 Determination of Right to
Indemnification Any indemnification under Section 6.1 or
6.2 (unless ordered
by a court) shall be made, if at all, by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper under the circumstances because he or she has met the
applicable standard of conduct set forth in Section 6.1 or
6.2. Any
indemnification under Section 6.4 (unless
ordered by a court) shall be made, if at all, by the Corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper under the circumstances. Such determinations shall be made
with respect to a person who is a director or officer at the time
of such determination (1) by a majority vote of directors who
were not parties to such action, suit or proceeding even though
less than a quorum of the Board, (2) by a committee of such
directors designated by majority vote of such directors, even
though less than a quorum, (3) if there are no such directors,
or if such directors so direct, by independent counsel in a written
opinion or (4) by the stockholders of the Corporation. To
obtain indemnification under this Article VI, any person
referred to in Section 6.1, 6.2, 6.3 or 6.4 shall submit to the
Corporation a written request, including therewith such documents
as are reasonably available to such person and are reasonably
necessary to determine whether and to what extent such person is
entitled to indemnification.
Section 6.6 Advancement of Costs, Charges
and Expenses Costs, charges and expenses (including
attorneys’ fees and expenses) incurred by or on behalf of a
director or officer in defending a civil or criminal action, suit
or proceeding referred to in Section 6.1 or
6.2 shall be paid
by the Corporation in advance of the final disposition of such
action, suit or proceeding; provided, however, that the payment of
such costs, charges and expenses incurred by or on behalf of a
director or officer in advance of the final disposition of such
action, suit or proceeding shall be made only upon receipt of a
written undertaking, by or on behalf of the director or officer to
repay all amounts so advanced in the event that it shall ultimately
be determined that such director or officer is not entitled to be
indemnified by the Corporation as authorized in this Article VI or by law. No
security shall be required for such undertaking and such
undertaking shall be accepted without reference to the
recipient’s financial ability to make repayment. The majority
of the directors who were not parties to such action, suit or
proceeding may, upon approval of such director or officer of the
Corporation, authorize the Corporation’s counsel to represent
such person, in any action, suit or proceeding, whether or not the
Corporation is a party to such action, suit or
proceeding.
Section 6.7 Procedure for
Indemnification Any indemnification under Section 6.1, 6.2, 6.3 or 6.4 or advancement of costs,
charges and expenses under Section 6.6 shall be made
promptly, and in any event within sixty (60) days (except
indemnification to be determined by stockholders which will be
determined at the next annual or special meeting of stockholders),
upon the written request of the director or officer. The right to
indemnification or advancement of expenses as granted by this
Article VI shall be
enforceable by the director, officer, employee or agent in any
court of competent jurisdiction in the event the Corporation denies
such request, in whole or in part, or if no disposition of such
request is made within sixty (60) days of the request. Such
person’s costs, charges and expenses incurred in connection
with successfully establishing his or her right to indemnification
or advancement, to the extent successful, in any such action shall
also be indemnified by the Corporation. It shall be a defense to
any such action (other than an action brought to enforce a claim
for the advancement of costs, charges and expenses under
Section 6.6
where the required undertaking, if any, has been received by the
Corporation) that the claimant has not met the standard of conduct
set forth in Section 6.1 or
6.2, but the burden
of proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including its directors, its
independent counsel and its stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in Section 6.1 or
6.2, nor the fact
that there has been an actual determination by the Corporation
(including its directors, its independent counsel and its
stockholders) that the claimant has not met such applicable
standard of conduct, shall be a defense to the action or create a
presumption that the claimant has not met the applicable standard
of conduct.
Section 6.8 Settlement The
Corporation shall not be obligated to reimburse the costs, charges
and expenses of any settlement to which it has not agreed. If, in
any action, suit or proceeding (including any appeal) within the
scope of Section 6.1 or
6.2, the person to
be indemnified shall have unreasonably failed to enter into a
settlement thereof offered or assented to by the opposing party or
parties in such action, suit or proceeding, then, notwithstanding
any other provision of this Article VI, the indemnification
obligation of the Corporation to such person in connection with
such action, suit or proceeding shall not exceed the total of the
amount at which settlement could have been made and the expenses
incurred by or on behalf of such person prior to the time such
settlement could reasonably have been effected.
Section 6.9 Other Rights; Continuation of
Right to Indemnification; Individual Contracts The
indemnification and advancement of costs, charges and expenses
provided by or granted pursuant to this Article VI shall not be
deemed exclusive of any other rights to which any person seeking
indemnification or advancement of costs, charges and expenses may
be entitled under law (common or statutory) or any Bylaw,
agreement, policy of indemnification insurance or vote of
stockholders or directors or otherwise, both as to action in his or
her official capacity and as to action in any other capacity while
holding office, and shall continue as to any person who has ceased
to be a director, officer, employee or agent and shall inure to the
benefit of the legatees, heirs, distributees, executors and
administrators of any such person. Nothing contained in this
Article VI
shall be deemed to prohibit the Corporation from entering into, and
the Corporation is specifically authorized to enter into,
agreements with directors, officers, employees and agents providing
indemnification rights and procedures different from those set
forth herein. All rights to indemnification under this Article VI shall be deemed
to be a contract between the Corporation and each director,
officer, employee or agent of the Corporation who serves or served
in such capacity (or is or was serving or has agreed to serve at
the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or
other enterprise) at any time while this Article VI is in
effect.
Section 6.10 Savings Clause If this
Article VI or
any portion shall be invalidated on any ground by any court of
competent jurisdiction, the Corporation shall nevertheless
indemnify each director or officer, and may indemnify each employee
or agent, of the Corporation as to any costs, charges, expenses
(including attorneys’ fees and expenses), judgments, fines
and amounts paid in settlement with respect to any action, suit or
proceeding, whether civil, criminal, administrative or
investigative (including any action by or in the right of the
Corporation), to the full extent permitted by any applicable
portion of this Article VI that shall not
have been invalidated and to the fullest extent permitted by
applicable law.
Section 6.11 Insurance The
Corporation may purchase and maintain insurance, at its expense, to
protect itself and any person who is or was a director, officer,
employee or agent of the Corporation or is or was serving or has
agreed to serve at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any costs, charges
or expenses, liability or loss incurred by such person in any such
capacity, or arising out of such persons status as such, whether or
not the Corporation would have the power to indemnify such person
against such costs, charges or expenses, liability or loss under
this Certificate of Incorporation or applicable law; provided, however, that such insurance is
available on acceptable terms as determined by a vote of the Board.
To the extent that any director, officer, employee or agent is
reimbursed by an insurance company under an indemnification
insurance policy for any costs, charges, expenses (including
attorneys’ fees and expenses), judgments, fines and amounts
paid in settlement to the fullest extent permitted by any
applicable portion of this Article VI, the Bylaws,
any agreement, the policy of indemnification insurance or
otherwise, the Corporation shall not be obligated to reimburse the
person to be indemnified in connection with such
proceeding.
Section 6.12 Definitions For
purposes of this Article VI, the following
terms shall have the following meanings:
(a)
“The Corporation” shall include, in addition to the
resulting corporation, any constituent corporation or entity
(including any constituent of a constituent) absorbed by way of an
acquisition, consolidation, merger or otherwise, which, if its
separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents
so that any person who is or was a director, officer, employee or
agent of such constituent corporation or entity, or is or was
serving at the written request of such constituent corporation or
entity as a director or officer of another corporation, entity,
partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this Article VI with respect to the
resulting or surviving corporation or entity as such person would
have with respect to such constituent corporation or entity if its
separate existence had continued;
(b)
“Other enterprises” shall include employee benefit
plans, including, but not limited to, any employee benefit plan of
the Corporation;
(c)
“Director or officer” of the Corporation shall include
any director or officer of the Corporation who is or was or has
agreed to serve at the request of the Corporation as a director,
officer, partner or trustee of another corporation, partnership,
joint venture, trust or other enterprise;
(d)
“Serving at the request of the Corporation” shall
include any service that imposes duties on, or involves services by
a director, officer, employee or agent of the Corporation with
respect to an employee benefit plan, its participants or
beneficiaries, including acting as a fiduciary
thereof;
(e)
“Fines” shall include any penalties and any excise or
similar taxes assessed on a person with respect to an employee
benefit plan;
(f) To
the fullest extent permitted by law, a person shall be deemed to
have acted in “good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests
of the Corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct
was unlawful,” if his or her action is based on the records
or books of account of the Corporation or another enterprise, or on
information supplied to him or her by the officers of the
Corporation or another enterprise in the course of their duties, or
on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to
the Corporation or another enterprise by an independent certified
public accountant or by an appraiser or other expert selected with
reasonable care by the Corporation or another enterprise;
and
(g) A
person shall be deemed to have acted in a manner “not opposed
to the best interests of the Corporation,” as referred to in
Sections 6.1
and 6.2 if such
person acted in good faith and in a manner he or she reasonably
believed to be in the interest of the participants and
beneficiaries of an employee benefit plan.
Section 6.13 Subsequent Amendment and
Subsequent Legislation Neither the amendment, termination or
repeal of this Article VI or of relevant
provisions of the DGCL or any other applicable laws, nor the
adoption of any provision of this Certificate of Incorporation or
the Bylaws of the Corporation or of any statute inconsistent with
this Article VI shall
eliminate, affect or diminish in any way the rights of any
director, officer, employee or agent of the Corporation to
indemnification under the provisions of this Article VI with respect to
any action, suit or proceeding arising out of, or relating to, any
actions, transactions or facts occurring prior to the final
adoption of any such amendment, termination, repeal, provision or
statute.
If the
DGCL is amended to expand further the indemnification permitted to
directors and officers of the Corporation, then the Corporation
shall indemnify such persons to the fullest extent permitted by the
DGCL, as so amended.
ARTICLE VII
CHOICE OF FORUM
Unless
the Corporation consents in writing to the selection of an
alternative forum, the Court of Chancery of the State of Delaware
shall, to the fullest extent permitted by law, be the sole and
exclusive forum for (1) any derivative action or proceeding
brought on behalf of the Corporation, (2) any action asserting
a claim of breach of a fiduciary duty owed by, or other wrongdoing
by, any director, officer, employee or agent of the Corporation to
the Corporation or the Corporation’s stockholders,
(3) any action asserting a claim arising pursuant to any
provision of the DGCL or the Certificate of Incorporation or
Bylaws, (4) any action to interpret, apply, enforce or
determine the validity of the Certificate of Incorporation or
Bylaws or (5) any action asserting a claim governed by the
internal affairs doctrine, in each such case subject to said Court
of Chancery having personal jurisdiction over the indispensable
parties named as defendants therein. 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 VII.
ARTICLE VIII
AMENDMENTS
Section 9.1 Amendments of Certificate of
Incorporation The Corporation reserves the right to amend,
alter, change or repeal any provision contained in this Certificate
of Incorporation in the manner now or hereafter prescribed in this
Certificate of Incorporation, the Corporation’s Bylaws or the
DGCL, and all rights herein conferred upon stockholders are granted
subject to such reservation.
Section 9.2 Amendments of Bylaws In
furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of the Corporation is
expressly authorized to make, alter, amend, rescind or repeal from
time to time any of the Bylaws of the Corporation in accordance
with the terms thereof; provided, however, that any Bylaw made by
the Board may be altered, amended, rescinded or repealed in
accordance with the terms thereof by the holders of 66 2/3 of the
shares of Capital Stock entitled to vote thereon at any annual
meeting or at any special meeting called for that purpose.
Notwithstanding the foregoing, any provision of the Bylaws that
contains a supermajority voting requirement shall only be altered,
amended, rescinded or repealed by a vote of the Board or holders of
shares of Capital Stock entitled to vote thereon that is not less
than the supermajority specified in such provision.
[Signature Page Follows]
IN
WITNESS WHEREOF, I have hereunto set my hand the 21 day of August,
2017.
/s/
Robert A. Berman
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Name: Robert
A. Berman
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Title: Chief
Executive Officer
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