EX-3.1 5 exhibit31.htm EX-3.1 exhibit31
 
 
 
 
 
 
 
 
THIRD AMENDED AND RESTATED
CERTIFICATE
 
OF INCORPORATION
OF
CAL-MAINE FOODS, INC.
Cal-Maine Foods, Inc.
 
(the “Corporation”), a
 
corporation organized and
 
existing under and
 
pursuant
to
 
the
 
provisions
 
of
the
 
General
 
Corporation
 
Law
 
of
 
the
 
State
 
of
 
Delaware
 
(the
 
“DGCL”),
 
does
 
hereby
certify as follows:
FIRST
:
 
The original Certificate of Incorporation of
 
the Corporation was filed with
 
the Secretary of
State
 
of
 
the
 
State
 
of
 
Delaware
 
on
 
September 10, 1969;
 
the
 
Amended
 
and
 
Restated
 
Certificate
 
of
Incorporation
 
of
 
the
 
Corporation
 
was
 
filed
 
with
 
the
 
Secretary
 
of
 
State
 
of
 
the
 
State
 
of
 
Delaware
 
on
October 3, 1996;
 
the
 
Second Amended
 
and
 
Restated
 
Certificate
 
of
 
Incorporation
 
of
 
the
 
Corporation
 
was
filed with the Secretary of State of the
 
State of Delaware on July 20, 2018; and a Certificate of
 
Amendment
to
 
the
 
Second Amended
 
and
 
Restated
 
Certificate
 
of
 
Incorporation
 
of
 
the
 
Corporation
 
was
 
filed
 
with
 
the
Secretary of State of the State of Delaware on October 4, 2024.
SECOND
:
 
This
 
Third Amended
 
and
 
Restated
 
Certificate
 
of
 
Incorporation
 
was
 
duly
 
adopted
 
in
accordance with
Sections 242 and
 
245 of
 
the DGCL and
 
was duly
 
approved by
 
the written
 
consent of
 
the
stockholders of the Corporation in accordance with Section 228 of the DGCL.
THIRD
:
 
This Third
 
Amended and
 
Restated Certificate
 
of Incorporation
 
shall become
 
effective upon
filing with the Secretary of State of the State of Delaware.
The
 
Corporation
 
hereby
 
restates
 
and
 
integrates
 
and
 
further
 
amends
 
the
 
Second
 
Amended
 
and
Restated
 
Certificate
 
of
 
Incorporation,
 
as
 
amended,
 
of
 
the
 
Corporation
by
 
revising
 
such
 
document
 
in
 
its
entirety as follows:
ARTICLE I
NAME
The name of the Corporation is CAL-MAINE FOODS, INC.
ARTICLE II
REGISTERED OFFICE
The
 
name
 
of
 
its
 
registered
 
agent
 
is
 
The
 
Corporation
 
Service
 
Company
.
 
The
 
address
 
of
 
such
registered
 
office
 
in
 
the
 
State
 
of
 
Delaware
 
is
 
251
 
Little
 
Falls
 
Drive, Wilmington,
 
Delaware
 
19808,
 
in
 
the
County of New Castle.
ARTICLE III
PURPOSE
The purpose of
 
the Corporation is to
 
engage in any
 
lawful act or activity
 
for which corporations
 
may
be organized under the DGCL.
ARTICLE IV
CAPITAL STOCK
1.
 
Authorized Capital Stock.
 
The amount of capital stock that the Corporation is authorized to
issue shall be
 
134,800,000 shares of Capital
 
Stock and shall
 
consist of (a) 120,000,000
 
shares of common
stock with a
 
par value of
 
$0.01 per share (the
 
“Common Stock”), (b) 10,000,000 shares
 
of preferred stock
 
 
 
 
 
 
 
 
 
 
 
with a
 
par value
 
of $0.01 per
 
share (the
 
“Preferred Stock”)
 
and (c) 4,800,000 shares
 
of Class A
 
Common
Stock with a par value of $0.01 per share.
2.
 
Increase
 
or Decrease
 
in
 
Authorized
 
Preferred
 
Stock.
 
The
 
number
 
of
 
authorized
 
shares
 
of
Preferred Stock
 
may be
 
increased or
 
decreased (but
 
not below
 
the number
 
of shares
 
thereof then
 
outstanding)
by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled
to vote
 
generally in
 
the election
 
of directors,
 
irrespective of
 
the provisions
 
of Section 242(b)(2)
 
of the
 
DGCL
(or any successor provision thereto), voting
 
together as a single class, without
 
a separate vote of the holders
of the Preferred Stock , unless a vote by any holders of one or
 
more series of Preferred Stock is required by
the
 
express terms
 
of
 
any series
 
of Preferred
 
Stock as
 
provided
 
for
 
or fixed
 
pursuant
 
to
 
the
 
provisions of
Article IV,
 
Section 4 of this amended and
 
restated certificate of incorporation of
 
the Corporation (as further
amended from time to time in
 
accordance with the provisions hereof and
 
including, without limitation, the
terms
 
of
 
any
 
certificate
 
of
 
designation
 
with
 
respect
 
to
 
any
 
series
 
of
 
Preferred
 
Stock,
 
this
 
“Certificate
 
of
Incorporation”).
3.
 
Common Stock.
(a)
 
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
 
of the
 
Corporation on
 
which the
 
holders
 
of shares
 
of
Common Stock
 
are
 
entitled to
 
vote.
 
The holders
 
of shares
 
of Common
 
Stock shall
 
not have
 
cumulative
voting rights.
 
Except as
 
otherwise required
 
by law
 
or this
 
Certificate of
 
Incorporation, and
 
subject to
 
the
rights of the
 
holders of shares
 
of Preferred Stock,
 
if any, at any
 
annual or special
 
meeting of the
 
stockholders
of the
 
Corporation, the holders
 
of shares of
 
Common Stock shall
 
have the right
 
to vote for
 
the election of
directors and on all other matters properly submitted to a vote of the stockholders; provided,
 
however, that,
except as otherwise required
 
by law, holders of shares of
 
Common Stock shall
 
not be entitled to
 
vote on any
amendment to
 
this Certificate
 
of Incorporation
 
that relates
 
solely to
 
the terms,
 
number of
 
shares, powers,
designations,
 
preferences
 
or
 
relative,
 
participating,
 
optional
 
or
 
other
 
special
 
rights
 
(including,
 
without
limitation, voting rights), or to qualifications, limitations or restrictions thereof, 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 or
pursuant to the DGCL.
(b)
 
Except as
 
otherwise required
 
by law
 
or this
 
Certificate of
 
Incorporation, and
 
subject to
 
the
rights of the holders
 
of shares of Preferred
 
Stock, the holders of
 
shares of Common Stock
 
shall be entitled
to
 
receive
 
such
 
dividends
 
and
 
other
 
distributions
 
(payable
 
in
 
cash,
 
property
 
or
 
capital
 
stock
 
of
 
the
Corporation) when,
 
as and
 
if declared
 
thereon by
 
the board
 
of directors
 
of the
 
Corporation (the
 
“Board”)
from time
 
to time
 
out of
 
any assets
 
or funds
 
of the
 
Corporation legally
 
available therefor
 
and shall
 
share
equally on a per share basis in such dividends and distributions.
(c)
 
Except as otherwise required by
 
law or this Certificate of
 
Incorporation, 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,
 
and subject
 
to the rights
 
of the
holders
 
of
 
shares
 
of
 
Preferred
 
Stock
 
in
 
respect
 
thereof,
 
the
 
holders
 
of
 
shares
 
of
 
Common
 
Stock
 
shall
 
be
entitled to receive
 
all of the
 
remaining assets of
 
the Corporation
 
available for distribution
 
to its stockholders,
ratably in proportion to the number of shares of Common Stock held by them.
4.
 
Preferred Stock.
(a)
 
The Board is
 
expressly authorized to
 
issue from time
 
to time shares
 
of Preferred Stock
 
in one
or more
 
series pursuant to
 
a resolution or
 
resolutions providing for
 
such issue duly
 
adopted by the
 
Board.
 
The Board is further authorized, subject to limitations prescribed by law,
 
to fix by resolution or resolutions
and
 
to
 
set
 
forth
 
in
 
a
 
certification
 
of
 
designation
 
filed
 
pursuant
 
to
 
the
 
DGCL
 
the
 
powers,
 
designations,
 
 
 
 
 
 
 
preferences
 
and
 
relative,
 
participating,
 
optional
 
or
 
other
 
special
 
rights,
 
if
 
any,
 
and
 
the
 
qualifications,
limitations or
 
restrictions thereof,
 
if any, of
 
any wholly
 
unissued series
 
of Preferred
 
Stock, including,
 
without
limitation, dividend
 
rights, dividend
 
rate, conversion
 
rights, voting
 
rights, rights
 
and terms
 
of redemption
(including,
 
without
 
limitation,
 
sinking
 
fund
 
provisions),
 
redemption
 
price
 
or
 
prices
 
and
 
liquidation
preferences of
 
any such
 
series, and
 
the number
 
of shares
 
constituting any
 
such series
 
and the
 
designation
thereof, or any of the foregoing.
(b)
 
The
 
Board
 
is
 
further
 
authorized
 
to
 
increase
 
(but
 
not
 
above
 
the total
 
number
 
of
 
authorized
shares of the class) or
 
decrease (but not below the
 
number of shares of any
 
such series then outstanding) the
number of shares
 
of any series
 
of Preferred Stock,
 
the number of
 
which was fixed
 
by it, subsequent
 
to the
issuance of
 
shares of
 
such series
 
then outstanding,
 
subject to
 
the powers,
 
preferences and
 
rights, and
 
the
qualifications, limitations and
 
restrictions thereof,
 
stated in
 
this Certificate
 
of Incorporation or
 
the resolution
of the Board originally fixing the number
 
of shares of such series.
 
If the number of shares of any series
 
of
Preferred Stock is so decreased, then the shares constituting such decrease shall resume the status that they
had prior to the adoption of the resolution originally fixing the number of shares of such series.
5.
 
Class A Common Stock.
 
As long as any shares of Class A Common Stock are issued and
outstanding, the powers, designations, preferences or relative, participating, optional or other special rights
(including, without limitation, voting rights) of the Common Stock shall be subject to the powers,
designations, preferences or relative, participating, optional or other special rights (including, without
limitation, voting rights) of the Class A Common Stock, as described in this Article IV,
 
Section 5 and, if
applicable, elsewhere in this Certificate of Incorporation.
 
At the earliest date that no shares of Class
A
Common Stock are issued or outstanding, the provisions of this Article IV,
 
Section 5 shall terminate and
cease to be of any further force or effect.
(a)
 
The holders of shares of Class A Common Stock shall not have cumulative voting rights.
(b)
 
Each share of Class A Common Stock shall have ten votes per share on all matters that may
be submitted to a vote or consent of the stockholders.
(c)
 
Except as otherwise provided herein or required
 
by law, the Common Stock and the Class
A
Common Stock shall together vote as a class, except that the
 
holders of Common Stock shall have one vote
per share and the holders of Class A Common Stock shall have ten votes per share.
(d)
 
Anything herein
 
to the
 
contrary notwithstanding,
 
the holders
 
of Common
 
Stock shall
 
have
exclusive voting power on all matters
 
at any time when no shares of
 
Class A Common Stock are issued and
outstanding,
 
and
 
the
 
holders
 
of
 
the
 
Class A
 
Common
 
Stock
 
will
 
have
 
the
 
exclusive
 
voting
 
power
 
on
 
all
matters at any time when no shares of the Common Stock are issued and outstanding.
(e)
 
Except as otherwise provided
 
herein or required by
 
applicable law, shares of Common Stock
and Class A Common Stock shall have the same rights and powers, rank equally (including as to dividends
and distributions, and
 
upon any liquidation,
 
dissolution or winding
 
up of the
 
Corporation), share ratably
 
and
be identical in all respects and as to all matters.
(f)
 
Shares of
 
Common Stock
 
and Class A
 
Common Stock
 
shall be
 
treated equally,
 
identically
and ratably, on a per share basis, with respect to any dividends or distributions as may be declared and
 
paid
from time
 
to time
 
by the
 
Board out
 
of any
 
assets of
 
the Corporation
 
legally available
 
therefor; provided,
however, that in the event a dividend
 
is paid in the
 
form of shares of
 
Capital Stock (or rights
 
to acquire such
shares), then
 
holders of
 
Common Stock
 
shall receive
 
shares of
 
Common Stock
 
(or rights
 
to acquire
 
such
shares, as the case may
 
be) and holders of Class
 
A Common Stock shall receive
 
shares of Class A Common
Stock (or rights
 
to acquire such
 
shares, as the
 
case may be),
 
with holders of
 
shares of Common
 
Stock and
Class A Common Stock receiving, on a per share basis, an identical number
 
of shares of Common Stock or
 
 
Class A
 
Common
 
Stock,
 
as
 
applicable.
 
Notwithstanding
 
the
 
foregoing,
 
the
 
Board
 
may
 
pay
 
or
 
make
 
a
disparate dividend
 
or distribution
 
per share
 
of Common
 
Stock or
 
Class A Common
 
Stock (whether
 
in the
amount of such dividend or distribution
 
payable per share, the form in
 
which such dividend or distribution
is payable, the timing of
 
the payment, or otherwise) if
 
such disparate dividend or distribution
 
is approved in
advance by the
 
affirmative vote of the
 
holders of a
 
majority of the
 
outstanding shares of
 
Common Stock and
Class A Common Stock, each voting separately as a class.
(g)
 
Shares of
 
Common Stock
 
or Class A
 
Common Stock
 
may not
 
be subdivided,
 
combined or
reclassified
 
unless
 
the
 
shares
 
of
 
the
 
other
 
class
 
are
 
concurrently
 
therewith
 
proportionately
 
subdivided,
combined or reclassified
 
in a manner
 
that maintains the
 
same proportionate equity
 
ownership between the
holders
 
of
 
the
 
outstanding
 
Common
 
Stock
 
and
 
Class A
 
Common
 
Stock
 
on
 
the
 
record
 
date
 
for
 
such
subdivision,
 
combination
 
or
 
reclassification;
 
provided,
 
however,
 
that
 
shares
 
of
 
one
 
such
 
class
 
may
 
be
subdivided,
 
combined
 
or
 
reclassified
 
in
 
a
 
different
 
or
 
disproportionate
 
manner
 
if
 
such
 
subdivision,
combination or reclassification is
 
approved in advance by
 
the affirmative vote
 
of the holders of
 
a majority
of the outstanding shares of Common Stock and Class A Common Stock, each voting separately as a class.
(h)
 
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,
and subject to the rights of the holders of shares of Preferred Stock in respect thereof, the
 
holders of shares
of Common Stock and Class A Common Stock shall be entitled
 
to receive all of the remaining assets of the
Corporation available
 
for distribution
 
to its
 
stockholders, ratably
 
in proportion
 
to the
 
number of
 
shares of
Common
 
Stock
 
or
 
Class A
 
Common
 
Stock,
 
as
 
applicable,
 
held
 
by
 
them,
 
unless
 
disparate
 
or
 
different
treatment of
 
the shares of
 
each such class
 
with respect
 
to distributions upon
 
any such liquidation,
 
dissolution
or winding up is approved
 
in advance by the affirmative vote
 
of the holders of a majority
 
of the outstanding
shares of Common Stock and Class A Common Stock, each voting separately as a class.
(i)
 
In
 
the
 
event
 
of
 
(i) a
 
merger,
 
consolidation
 
or
 
other
 
business
 
combination
 
requiring
 
the
approval of the holders of the Corporation’s
 
capital stock entitled to vote thereon, (ii) a tender or exchange
offer to
 
acquire any
 
shares of
 
Common Stock
 
or Class A
 
Common Stock
 
by an
 
third party
 
pursuant to an
agreement to
 
which the
 
Corporation is
 
a party,
 
or (iii) a
 
tender or
 
exchange offer
 
to acquire
 
any shares
 
of
Common
 
Stock
 
or
 
Class A
 
Common
 
Stock
 
by
 
the
 
Corporation,
 
holders
 
of
 
the
 
Common
 
Stock
 
and
 
the
Class A Common
 
Stock shall
 
have the
 
right to
 
receive, or
 
the right
 
to elect
 
to receive,
 
the same
 
form and
amount of consideration on a per share basis.
(j)
 
The holders of
 
record of Class A
 
Common Stock may
 
at any time
 
convert any whole
 
number
or
 
all
 
of
 
such
 
holder’s
 
shares
 
of
 
Class A
 
Common
 
Stock
 
into
 
fully
 
paid
 
and
 
non-assessable
 
shares
 
of
Common Stock of
 
the Corporation at
 
the rate
 
(subject to adjustment
 
as hereinafter provided)
 
of one share
of Common Stock for each share of
 
Class A Common Stock converted.
 
Such conversion shall be effected
by the
 
holder of
 
Class A Common
 
Stock surrendering
 
such Class A
 
Common Stock
 
certificate or
 
certificates
to be converted, duly endorsed, at the office of the Corporation or at
 
any transfer agent for the Corporation
or for the Class A Common Stock together with a written election to the Corporation at such office that the
holder
 
thereof
 
elects
 
to
 
convert
 
all
 
or
 
the
 
specified
 
number
 
of
 
shares
 
of
 
Class A
 
Common
 
Stock
 
into
Common Stock and specifying the name or names in
 
which the holder desires the certificate or certificates
for such shares of Common
 
Stock to be issued.
 
Upon conversion, the Corporation shall
 
issue and deliver to
such
 
holder
 
or
 
holders,
 
nominee
 
or
 
nominees,
 
a
 
certificate
 
or
 
certificates
 
for
 
the
 
number
 
of
 
shares
 
of
Common Stock to which
 
such holder shall be
 
entitled.
 
Such conversion shall be
 
deemed to have been
 
made
at the
 
close of
 
business on
 
the day
 
of presentation
 
for conversion
 
and the
 
person or
 
persons entitled
 
to receive
the shares
 
of Common
 
Stock as
 
a result
 
of such
 
conversion shall
 
be treated
 
for all
 
purposes as
 
the record
holder or holders of such shares of Common Stock on such date.
 
 
 
 
 
 
(k)
 
Before
 
any
 
shares
 
of
 
Common
 
Stock
 
shall
 
be
 
delivered
 
upon
 
conversion,
 
the
 
holders
 
of
shares of
 
Class A Common
 
Stock whose shares
 
are being converted
 
into Common Stock
 
shall deliver
 
the
certificate or certificates representing such shares to the Corporation or its
 
duly authorized agent (or if such
certificates have been
 
lost, stolen, or
 
destroyed, the holder
 
thereof shall execute
 
an agreement satisfactory
to the Corporation to indemnify the
 
Corporation from any loss incurred by
 
it in relation to such conversion)
specifying the place where the Common
 
Stock issued in conversion thereof
 
shall be sent.
 
The endorsement
of the certificate or
 
certificates of Class A Common
 
Stock to be converted
 
into Common Stock shall
 
be in
form satisfactory to the Corporation or its agent, as the case may be.
(l)
 
The number
 
of shares
 
of Common
 
Stock into
 
which the
 
shares of
 
Class A Common
 
Stock
may be converted
 
shall be subject
 
to adjustment from
 
time to time
 
in the event
 
of any capital
 
reorganization,
reclassification
 
of
 
stock
 
of
 
the
 
Corporation
 
or
 
consolidation
 
or
 
merger
 
of
 
the
 
Corporation
 
with
 
or
 
into
another
 
corporation.
 
Each
 
share
 
of the
 
Class A
 
Common
 
Stock shall
 
thereafter
 
be
 
convertible
 
into
 
such
kind and amount of
 
securities or other assets
 
or both as are
 
issuable or distributable in
 
respect to the number
of shares
 
of Common
 
Stock into
 
which each
 
share of
 
Class A Common
 
Stock is
 
convertible immediately
prior
 
to
 
such
 
reorganization,
 
reclassification,
 
consolidation
 
or
 
merger.
 
In
 
any
 
such
 
case,
 
appropriate
adjustments shall be made by the Board in
 
the application of the provisions herein set forth
 
with respect to
the rights and interests thereafter
 
of the holders of
 
Class A Common Stock such that
 
the provisions set forth
herein (including provisions for adjustment
 
of the conversion rate) shall
 
thereafter be applicable, as
 
nearly
as
 
reasonably
 
may
 
be
 
possible
 
in
 
relation
 
to
 
any
 
securities
 
or
 
other
 
assets
 
thereafter
 
deliverable
 
upon
conversion of the Class A Common Stock.
(m)
 
The
 
Corporation
 
shall
 
at
 
all
 
times
 
reserve
 
and
 
keep
 
available
 
out
 
of
 
the
 
authorized
 
and
unissued
 
shares
 
of Common
 
Stock, solely
 
for
 
the purpose
 
of effecting
 
the conversion
 
of
 
the outstanding
Class A
 
Common
 
Stock,
 
such
 
number
 
of
 
the
 
shares
 
of
 
Common
 
Stock
 
as
 
shall
 
from
 
time
 
to
 
time
 
be
sufficient to effect conversion of all outstanding Class A Common Stock and if, at any time, the number of
authorized and
 
unissued shares
 
of Common
 
Stock shall
 
not be
 
sufficient
 
to effect
 
conversion of
 
the then
outstanding Class A Common Stock,
 
the Corporation shall take
 
such action as may
 
be necessary to increase
the number of authorized
 
and unissued shares of
 
Common Stock to such
 
number shall be sufficient for
 
such
purposes.
(n)
 
The Class A
 
Common Stock
 
may be
 
issued only
 
to Fred R.
 
Adams, Jr., his
 
Immediate Family
Members and any Permitted Transferee.
(o)
 
As used herein “Immediate
 
Family Members” is defined
 
as Fred R. Adams, Jr.,
 
his spouse,
his natural children, his sons-in-law, and his grandchildren, including
 
the estates of all of
 
such persons.
 
For
purposes of the foregoing,
 
the estate of a
 
person shall include only
 
such person’s
 
estate, and a person
 
who
receives a
 
distribution from
 
such estate
 
shall not
 
be an
 
Immediate Family
 
Member unless
 
such person
 
is
otherwise included in the foregoing definition of Immediate Family Member.
(p)
 
As used herein “Permitted Transferee”
 
includes:
(i)
 
an Immediate Family Member;
(ii)
 
a trust
 
held for
 
the sole
 
or primary
 
benefit of
 
one or
 
more Immediate
 
Family Members
or Permitted Transferees,
 
including any trustee
 
in such trustee’s
 
capacity as such;
 
provided, however,
 
that
if a trust is not for the sole benefit of
 
one or more Immediate Family Members or Permitted Transferees, an
Immediate
 
Family
 
Member
 
or
 
Permitted
 
Transferee
 
must
 
retain
 
sole
 
dispositive
 
and
 
exclusive
 
power
 
to
direct the
 
voting of
 
the shares
 
of Class A
 
Common Stock
 
held by
 
such trust;
 
provided further
 
that in
 
the
event an Immediate Family Member or Permitted Transferee ceases to retain sole dispositive
 
and exclusive
power to direct the voting
 
of the shares of Class A
 
Common Stock held by such
 
trust, each share of Class
A
Common Stock held
 
by such trust
 
shall automatically be
 
converted into one
 
fully paid and
 
non-assessable
 
 
 
 
 
 
 
 
share of Common
 
Stock without any
 
further action by
 
the Corporation or
 
any holder of
 
Class A Common
Stock;
(iii)
 
a corporation, limited
 
liability company or
 
partnership, including but not
 
limited to,
a family limited partnership or similar limited liability company or corporation, or a single member limited
liability company, but only if all of the equity interest in such entity is owned, directly or indirectly, by one
or
 
more
 
Immediate
 
Family
 
Members
 
or
 
Permitted
 
Transferees
 
and
 
an
 
Immediate
 
Family
 
Member
 
or
Permitted
 
Transferee
 
retains
 
sole
 
dispositive
 
and
 
exclusive
 
power
 
to
 
direct
 
the
 
voting
 
of
 
the
 
shares
 
of
Class A
 
Common
 
Stock
 
held
 
by
 
such
 
entity;
 
provided,
 
however,
 
that
 
in
 
the
 
event
 
an
 
Immediate
 
Family
Member or Permitted
 
Transferee ceases
 
to retain sole
 
dispositive and exclusive
 
power to direct
 
the voting
of the shares of Class A Common Stock held by such entity, each share of Class A Common Stock held by
such entity shall automatically be
 
converted into one fully paid
 
and non-assessable share of Common
 
Stock
without any further action by the Corporation or any holder of Class A Common Stock;
(iv)
 
an
 
Individual
 
Retirement
 
Account,
 
as
 
defined
 
in
 
Section 408(a)
 
of
 
the
 
Internal
Revenue Code, or
 
a pension, profit
 
sharing, stock bonus
 
or other type
 
of plan or
 
trust of which
 
an Immediate
Family Member or Permitted Transferee is a participant
 
or beneficiary and which satisfies the
 
requirements
for qualification
 
under Section 401
 
of the
 
Internal Revenue
 
Code, but
 
only if,
 
in each
 
case, an
 
Immediate
Family Member or Permitted Transferee retains sole dispositive and
 
exclusive power to direct the voting
 
of
the shares
 
of Class A
 
Common Stock
 
held by
 
such account,
 
plan or
 
trust; provided,
 
however,
 
that in
 
the
event an Immediate Family Member or Permitted Transferee ceases to retain sole dispositive
 
and exclusive
power to direct the voting of the shares of Class A
 
Common Stock held by such account, plan or trust, each
share of
 
Class A Common Stock
 
held by such
 
account, plan or
 
trust shall automatically
 
be converted
 
into
one fully paid and non-assessable share of Common
 
Stock without any further action by the Corporation
 
or
any holder of Class A Common Stock; or
(v)
 
any guardianship,
 
conservatorship or
 
custodianship for
 
the benefit
 
of an
 
Immediate
Family Member
 
who has
 
been adjudged
 
disabled, incapacitated,
 
incompetent or
 
otherwise unable
 
to manage
his or her own
 
affairs by a court of
 
competent jurisdiction, including any
 
guardian, conservator or custodian
in such guardian’s, conservator’s or custodian’s
 
capacity as such.
(q)
 
In the event
 
that beneficial or
 
record interest in
 
any shares of
 
Class A Common Stock
 
shall
be
 
transferred,
 
sold,
 
assigned,
 
conveyed,
 
hypothecated,
 
gifted
 
or
 
otherwise
 
disposed
 
of
 
or
 
transferred,
whether or not for value and whether voluntary
 
or involuntary or by operation of law
 
or intestacy,
 
to, or in
the event any shares of
 
Class A Common Stock, by operation
 
of law or otherwise, are
 
(or shall be deemed
to be)
 
owned by,
 
any person
 
or entity
 
other than
 
an Immediate
 
Family Member
 
or Permitted
 
Transferee,
each such
 
share of
 
Class A Common
 
Stock shall
 
automatically be
 
converted into
 
one fully
 
paid and
 
non-
assessable share of Common Stock without any further
 
action by the Corporation or any holder of Class
A
Common Stock.
 
For the
 
avoidance of
 
doubt, a “transfer”
 
shall also
 
include, without
 
limitation, a
 
transfer
of shares
 
of Class A
 
Common Stock
 
to a
 
broker or
 
other nominee
 
(regardless of
 
whether or
 
not there
 
is a
corresponding change in beneficial ownership),
 
or the transfer of,
 
or entering into a
 
binding agreement with
respect
 
to,
 
the
 
power
 
to
 
vote
 
or
 
direct
 
the
 
vote
 
of
 
any
 
shares
 
of
 
Class A
 
Common
 
Stock
 
by
 
proxy
 
or
otherwise; provided, however, that granting
 
a proxy to officers or
 
directors of the Corporation
 
at the request
of the Board in connection with actions to be taken at an annual or special meeting of stockholder shall not
be considered a “transfer.”
(r)
 
For
 
the
 
avoidance
 
of
 
doubt,
 
no
 
“transfer”
 
shall
 
be
 
deemed
 
to
 
have
 
resulted
 
from,
 
and
 
no
conversion of Class A
 
Common Stock into
 
Common Stock shall
 
occur as a
 
result of, any
 
person’s entry into
that certain Amended and Restated Memorandum
 
of Understanding dated May 14, 2018 or the
 
transaction
documents contemplated thereby.
 
 
 
 
(s)
 
At such time
 
as less than
 
4,300,000 shares of Class
 
A Common Stock,
 
or less than
 
4,600,000
shares of Class A Common Stock and Common Stock in
 
the aggregate, (such amounts to be adjusted from
time
 
to
 
time
 
for
 
subdivisions,
 
combinations,
stock
 
splits
 
and
 
pro
 
rata
 
stock
 
dividends),
 
are
 
beneficially
owned by
 
Immediate Family
 
Members or
 
Permitted Transferees,
 
then each
 
outstanding share
 
of Class
A
Common
 
Stock
 
shall
 
automatically
 
be
 
converted
 
into
 
one
 
validly
 
issued
 
and
 
non-assessable
 
share
 
of
Common Stock without any further action by the Corporation or any holder of Class A Common Stock.
(t)
 
No shares of Class A Common Stock acquired by the Corporation by reason of redemption,
purchase,
 
conversion
 
or
 
otherwise
 
shall
 
be
 
reissued
 
and
 
all
 
such
 
shares
 
shall
 
be
 
cancelled,
 
retired
 
and
eliminated from the shares that the Corporation shall be authorized to issue.
(u)
 
The holder of shares of Class A Common Stock
 
of the Corporation may pledge or otherwise
utilize
 
Class A
 
Common
 
Stock
 
as
 
security
 
for
 
an
 
obligation
 
of
 
a
 
holder
 
of
 
such
 
stock.
 
Such
 
pledge
 
or
utilization shall not
 
be considered as
 
a transfer of
 
ownership for the
 
purposes of determining
 
eligibility of
ownership
 
of
 
the
 
Class A
 
Common
 
Stock
 
until
 
the
 
beneficial
 
ownership
 
of
 
any
 
such
 
pledged
 
or
hypothecated stock is
 
transferred of record
 
to a person
 
or entity who
 
is not an
 
Immediate Family Member
or Permitted Transferee.
(v)
 
Conversion
 
into
 
Common
 
Stock
 
shall
 
be
 
deemed
 
to
 
have
 
occurred
 
(whether
 
or
 
not
certificates representing such shares are surrendered) as
 
of the close of business on the date
 
of transfer and
the person or persons (including any entity or entities) entitled to
 
receive shares of Common Stock issuable
upon
 
such
 
conversion
 
shall
 
be
 
treated
 
for
 
all
 
purposes
 
as
 
the
 
record
 
holder
 
or
 
holders
 
of
 
such
 
shares
 
of
Common Stock on such date.
(w)
 
The Corporation shall
 
pay any and all
 
taxes or other fees
 
payable in respect of
 
the issuance
and delivery of
 
shares of Common
 
Stock issuable as
 
a result of the
 
conversion of Class A
 
Common Stock
unless the
 
issuance of
 
Common Stock
 
results from
 
the transfer
 
of Class A
 
Common Stock
 
to a
 
person or
entity not entitled to the ownership thereof.
(x)
 
So long as any shares of Class A Common Stock are outstanding, the Corporation shall not,
without first obtaining the approval
 
by vote or written consent
 
in the manner provided by
 
law of the holders
of
 
not
 
less
 
than
 
66
2
/
3
%
 
of
 
the
 
total
 
number
 
of
 
shares
 
of
 
Class A
 
Common
 
Stock
 
outstanding,
 
voting
separately as a class,
 
(1) alter or change the rights
 
or privileges of Class A Common
 
Stock, (2) amend any
provision
 
of
 
this
 
Article IV,
 
Section 5
 
affecting
 
the
 
Class A
 
Common
 
Stock
 
or
 
(3) effect
 
any
 
re-
classification or re-capitalization of the Corporation’s outstanding capital stock.
(y)
 
Shares of Class A Common Stock may be issued to any party eligible to own such stock for
such
 
consideration,
 
in
 
an
 
amount
 
not
 
less
 
than
 
the
 
par
 
value
 
thereof,
 
as
 
the
 
Board
 
shall
 
determine
 
to
 
be
adequate,
 
including
 
without
 
limitation,
 
shares
 
of
 
the
 
Corporation’s
 
Common
 
Stock
 
on
 
a
 
share
 
for
 
share
basis.
ARTICLE V
BOARD OF DIRECTORS
1.
 
General Powers.
 
The business and affairs
 
of the Corporation shall be
 
managed by or under
the direction of the Board.
2.
 
Number of Directors; Election; Term.
(a)
 
The number of directors that shall constitute the entire Board shall not be less than three nor
more than twelve. Within
 
such limit, the number
 
of members of the
 
entire Board shall be
 
fixed, from time
to time, exclusively by the Board in accordance with the bylaws of the Corporation (as amended from time
 
 
 
 
 
 
 
 
 
to time in accordance with the provisions hereof and thereof,
 
the “Bylaws”), subject to the rights of holders
of any series of Preferred Stock with respect to the election of directors, if any.
(b)
 
Subject to the
 
rights of holders
 
of any series
 
of Preferred Stock
 
with respect to
 
the election
of directors, the directors of the
 
Corporation shall be divided into three
 
classes as nearly equal in number
 
as
is practicable, hereby designated
 
Class I, Class II and Class III.
 
The Board is authorized
 
to assign members
of the Board already in office to such classes.
 
The term of office of the initial Class I directors shall expire
upon the election of directors at the first annual meeting of stockholders following the
 
effectiveness of this
Article V; the term of office
 
of the initial Class II directors shall expire upon the election of directors at the
second annual meeting of stockholders following the effectiveness
 
of this Article V;
 
and the term of office
of
 
the
 
initial
 
Class III
 
directors
 
shall
 
expire
 
upon
 
the
 
election
 
of
 
directors
 
at
 
the
 
third
 
annual
 
meeting
 
of
stockholders
 
following
 
the
 
effectiveness
 
of
 
this
 
Article V.
 
At
 
each
 
annual
 
meeting
 
of
 
stockholders,
commencing
 
with
 
the
 
first
 
annual
 
meeting
 
of
 
stockholders
 
following
 
the
 
effectiveness
 
of
 
this
 
Article V,
each of
 
the successors
 
elected to
 
replace the
 
directors of
 
a class
 
whose term
 
shall have
 
expired at
 
such annual
meeting shall be elected
 
to hold office until the
 
third annual meeting next
 
succeeding his or her
 
election and
until
 
his
 
or
 
her
 
respective
 
successor
 
shall
 
have been
 
duly
 
elected
 
and
 
qualified.
 
Subject
 
to
 
the
 
rights
 
of
holders of any series of
 
Preferred Stock with respect to
 
the election of directors, if
 
the number of directors
that constitutes the Board is
 
changed, any newly created
 
directorships or decrease in directorships
 
shall be
so
 
apportioned
 
by
 
the
 
Board
 
among
 
the
 
classes
 
as
 
to
 
make
 
all
 
classes
 
as
 
nearly
 
equal
 
in
 
number
 
as
 
is
practicable;
 
provided,
 
however,
 
that
 
no
 
decrease
 
in
 
the
 
number
 
of
 
directors
 
constituting
 
the
 
Board
 
shall
shorten the term of any incumbent director.
(c)
 
Subject to the
 
rights of holders
 
of any series
 
of Preferred Stock
 
with respect to
 
the election
of directors,
 
each director
 
shall serve
 
until such
 
director’s successor
 
is duly
 
elected and
 
qualified or
 
until
such director’s earlier death, resignation or removal.
(d)
 
Elections of directors need not be by written ballot unless the Bylaws shall so provide.
3.
 
Removal.
 
Subject to the rights
 
of holders of any
 
series of Preferred Stock
 
with respect to the
election of directors, a director
 
may be removed from
 
office by the stockholders of the
 
Corporation only for
cause and only
 
by the affirmative
 
vote of the
 
holders of at
 
least a majority
 
of the voting
 
power of all
 
then
outstanding shares of capital stock of the Corporation entitled to
 
vote generally in the election of directors,
voting together as a single class.
4.
 
Vacancies
 
and Newly
 
Created Directorships.
 
Subject to
 
the rights
 
of holders
 
of any
 
series
of Preferred Stock with respect to
 
the election of directors, vacancies
 
occurring on the Board for any
 
reason
and newly created directorships resulting from an increase in the number of directors may be filled only by
vote
 
of
 
a
 
majority
 
of
 
the
 
remaining
 
members
 
of
 
the
 
Board,
 
although
 
less
 
than
 
a
 
quorum,
 
or
 
by
 
a
 
sole
remaining director,
 
at any
 
meeting of
 
the Board
 
and not
 
by the
 
stockholders.
 
A person
 
so elected
 
by the
Board to fill a vacancy or newly created directorship shall hold
 
office until the next election of the class for
which such
 
person shall
 
have been
 
assigned by
 
the Board
 
and until
 
such person’s
 
successor shall
 
be duly
elected and qualified or until such director’s earlier death, resignation or removal.
ARTICLE VI
AMENDMENT OF BYLAWS
In
 
furtherance
 
and
 
not
 
in
 
limitation
 
of
 
the
 
powers
 
conferred
 
by
 
statute,
 
the
 
Board
 
is
 
expressly
authorized to adopt, amend, alter or repeal
 
the Bylaws.
 
The Bylaws may also be adopted, amended,
 
altered
or repealed by the stockholders
 
of the Corporation by the
 
affirmative vote of the holders
 
of at least 66
2
/
3
%
of
 
the
 
voting
 
power
 
of
 
all
 
then
 
outstanding
 
shares
 
of
 
capital
 
stock
 
of
 
the
 
Corporation
 
entitled
 
to
 
vote
generally in the election of directors, voting together as a single class.
 
 
 
 
 
 
 
 
 
 
 
 
 
ARTICLE VII
STOCKHOLDERS
1.
 
No Action by Written Consent of
 
Stockholders.
 
Except as otherwise expressly provided by
the terms of any series of Preferred Stock permitting the holders of such series
 
of Preferred Stock to act by
written consent,
 
any action
 
required or
 
permitted to
 
be taken
 
by the
 
stockholders of
 
the Corporation
 
must
be effected at a duly called
 
annual or special meeting of
 
the stockholders of the Corporation
 
and may not be
effected by written consent in lieu of a meeting.
2.
 
Special
 
Meetings.
 
Except
 
as
 
otherwise
 
expressly
 
provided
 
by
 
the
 
terms
 
of
 
any
 
series
 
of
Preferred
 
Stock
 
permitting
 
the
 
holders
 
of
 
such
 
series
 
of
 
Preferred
 
Stock
 
to
 
call
 
a
 
special
 
meeting
 
of
 
the
holders of
 
such series,
 
special meetings
 
of the
 
stockholders of
 
the Corporation
 
may be
 
called only
 
by the
Board Chair or the Board, and the ability of the
 
stockholders to call a special meeting of the stockholders
 
is
hereby specifically denied.
ARTICLE VIII
LIMITATION OF LIABILITY
 
AND INDEMNIFICATION
1.
 
Limitation of
 
Personal Liability.
 
No director
 
or officer
 
of the
 
Corporation shall
 
have any
personal liability to the
 
Corporation or its stockholders
 
for monetary damages for
 
breach of fiduciary duty
as
 
a
 
director
 
or
 
officer,
 
except
 
to
 
the
 
extent
 
such
 
exemption
 
from
 
liability
 
or
 
limitation
 
thereof
 
is
 
not
permitted under
 
the DGCL,
 
as it
 
presently exists
 
or may
 
hereafter be
 
amended from
 
time to
 
time.
 
If the
DGCL
 
is
 
amended
 
to
 
authorize
 
corporate
 
action
 
further
 
eliminating
 
or
 
limiting
 
the
 
personal
 
liability
 
of
directors or
 
officers, then the
 
liability of
 
a director
 
or officer
 
of the
 
Corporation shall
 
be eliminated
 
or limited
to the
 
fullest extent
 
permitted by the
 
DGCL, as
 
so amended.
 
For purposes
 
of this
 
Article VIII, Section 1,
“officer” shall have
 
the meaning provided in
 
Section 102(b)(7) of the DGCL,
 
as it presently
 
exists or may
hereafter be amended from time to time.
2.
 
Indemnification
 
and
 
Advancement
 
of
 
Expenses.
 
The
 
Corporation
 
shall
 
indemnify
 
its
directors
 
and
 
officers
 
to
 
the
 
fullest
 
extent
 
authorized
 
or
 
permitted
 
by
 
the
 
DGCL,
 
as
 
now
 
or
 
hereafter
 
in
effect,
 
and such
 
right to
 
indemnification shall
 
continue as
 
to a
 
person who
 
has ceased
 
to be
 
a director
 
or
officer of the
 
Corporation and shall inure
 
to the benefit of
 
such person’s
 
heirs, executors and personal
 
and
legal representatives.
 
A director’s
 
right to
 
indemnification conferred
 
by this
 
Article VIII, Section 2
 
shall
include the right
 
to be paid
 
by the Corporation
 
the expenses incurred
 
in defending or
 
otherwise participating
in any proceeding in advance of its final disposition, but only if such
 
director presents to the Corporation a
written undertaking
 
to repay
 
such amount
 
if it
 
shall ultimately
 
be determined
 
that such
 
director is
 
not entitled
to be indemnified by the Corporation under
 
this Article VIII or otherwise.
 
Notwithstanding the foregoing,
except for
 
proceedings to
 
enforce any
 
director’s or officer’s rights
 
to indemnification
 
or any
 
director’s rights
to advancement of expenses, the Corporation shall not be obligated to indemnify any director
 
or officer, or
advance
 
expenses
 
of
 
any
 
director
 
(or
 
such
 
director’s
 
or
 
officer’s
 
heirs,
 
executors
 
or
 
personal
 
or
 
legal
representatives), in
 
connection with
 
any proceeding
 
(or part
 
thereof) initiated
 
by such
 
person unless
 
such
proceeding (or part thereof) was authorized by the Board.
3.
 
Rights not Exclusive.
 
The rights to indemnification
 
and advancement of expenses
 
conferred
in
 
Article VIII,
 
Section 2
 
of
 
this
 
Certificate
 
of
 
Incorporation
 
shall
 
not
 
be
 
exclusive
 
of,
 
or
 
be
 
deemed
 
in
limitation of, any
 
rights to which
 
any person may
 
otherwise be or
 
become entitled or
 
permitted under this
Certificate
 
of
 
Incorporation,
 
the
 
Bylaws,
 
any
 
statute,
 
agreement,
 
vote
 
of
 
stockholders
 
or
 
disinterested
directors or otherwise.
4.
 
Insurance.
 
To the fullest extent authorized or permitted by the DGCL, the Corporation may
purchase and
 
maintain insurance
 
on behalf
 
of any
 
current or
 
former director
 
or officer
 
of the
 
Corporation
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
against any liability asserted against
 
such person, whether or not
 
the Corporation would have the
 
power to
indemnify such person against such liability under the provisions of this Article VIII or otherwise.
5.
 
Effect of Modifications.
 
Any amendment, repeal
 
or modification of
 
any provision contained
in this
 
Article VIII shall, unless
 
otherwise required by
 
law,
 
be prospective
 
only (except
 
to the
 
extent such
amendment or change
 
in law permits
 
the Corporation to
 
further limit or
 
eliminate the liability
 
of directors
or officers) and shall not adversely affect any right or protection of any
 
current or former director or officer
of the Corporation existing
 
at the time of
 
such amendment, repeal or
 
modification with respect to
 
any acts
or omissions occurring prior to such amendment, repeal or modification.
ARTICLE IX
GENERAL
1.
 
Forum for Certain Actions.
(a)
 
Unless a
 
majority of
 
the Board,
 
acting on
 
behalf of
 
the Corporation,
 
consents in
 
writing to
the
 
selection
 
of
 
an
 
alternative
 
forum
 
(which
 
consent
 
may
 
be
 
given
 
at
 
any
 
time,
 
including
 
during
 
the
pendency of litigation),
 
the Court of Chancery
 
of the State
 
of Delaware (or, if
 
the Court of
 
Chancery does
not have
 
jurisdiction, another
 
state court
 
located within
 
the State
 
of Delaware
 
or, if
 
no state
 
court located
within the State of
 
Delaware has jurisdiction, the
 
federal district court for
 
the District of Delaware),
 
to the
fullest
 
extent
 
permitted
 
by
 
law,
 
shall
 
be
 
the
 
sole
 
and
 
exclusive
 
forum
 
for
 
(i) any
 
derivative
 
action
 
or
proceeding brought
 
on behalf
 
of the
 
Corporation under
 
Delaware law,
 
(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 or any of its
 
directors, officers or other employees arising pursuant
 
to any provision of the
DGCL, this Certificate
 
of Incorporation or
 
the Bylaws (in
 
each case, as
 
may be amended
 
from time to
 
time),
(iv) any action asserting a claim against the Corporation or any of its directors, officers or other employees
governed
 
by
 
the
 
internal
 
affairs
 
doctrine
 
of
 
the
 
State
 
of
 
Delaware
 
or
 
(v) any
 
other
 
action
 
asserting
 
an
“internal corporate claim,” as defined in Section 115 of
 
the DGCL, in all cases subject to the
 
court’s having
personal jurisdiction
 
over all
 
indispensable parties
 
named as
 
defendants.
 
Unless a
 
majority of
 
the Board,
acting
 
on
 
behalf
 
of
 
the
 
Corporation,
 
consents
 
in
 
writing
 
to
 
the
 
selection
 
of
 
an
 
alternative
 
forum
 
(which
consent may be given at any time, including during
 
the pendency of litigation), the federal district courts of
the United
 
States of America, to
 
the fullest extent
 
permitted by law,
 
shall be the
 
sole and exclusive
 
forum
for
 
the
 
resolution
 
of
 
any
 
action
 
asserting
 
a
 
cause
 
of
 
action
 
arising
 
under
 
the
 
Securities Act
 
of
 
1933,
 
as
amended.
(b)
 
If
 
any
 
action
 
the
 
subject
 
matter
 
of
 
which
 
is
 
within
 
the
 
scope
 
of
 
subparagraph
 
(a) of
 
this
Article IX, Section 1 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
 
subparagraph
 
(a) of
 
this
 
Article IX,
 
Section 1
 
(an
“Enforcement
 
Action”)
 
and
 
(ii) having
 
service
 
of
 
process
 
made
 
upon
 
such
 
stockholder
 
in
 
any
 
such
Enforcement Action
 
by
 
service
 
upon
 
such
 
stockholder’s
 
counsel
 
in
 
the
 
Foreign Action
 
as
 
agent
 
for
 
such
stockholder.
(c)
 
If
 
any
 
provision
 
of
 
this
 
Article IX,
 
Section 1
 
shall
 
be
 
held
 
to
 
be
 
invalid,
 
illegal
 
or
unenforceable as applied
 
to any person,
 
entity or circumstance
 
for any reason
 
whatsoever, then, to
 
the fullest
extent permitted by law,
 
the validity, legality and
 
enforceability of such provision
 
in any other circumstance
and of the remaining provisions of this Article IX, Section 1, and the application of such provision to other
persons or entities and circumstances shall not in any way be affected or impaired thereby.
 
 
 
 
 
 
(d)
 
For the
 
avoidance of
 
doubt, any
 
person or
 
entity purchasing
 
or otherwise
 
acquiring or
 
holding
any
 
interest
 
in
 
any
 
security
 
of
 
the
 
Corporation
 
shall
 
be
 
deemed
 
to
 
have
 
notice
 
of
 
and
 
consented
 
to
 
the
provisions of this Article IX, Section 1.
2.
 
Amendment.
 
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 by
 
this
Certificate of Incorporation and the DGCL,
 
and all rights, preferences and privileges herein conferred
 
upon
stockholders of the Corporation by and
 
pursuant to this Certificate of Incorporation
 
in its present form or as
hereafter amended are
 
granted subject to
 
the right reserved
 
in this
 
Article IX, Section 2.
 
Notwithstanding
any other
 
provision of
 
this Certificate
 
of Incorporation,
 
and in
 
addition to
 
any other
 
vote that
 
may be
 
required
by law, applicable stock exchange rule or the terms of any series of Preferred Stock, the affirmative vote of
the
 
holders
 
of
 
at
 
least
 
66
2
/
3
%
 
of
 
the
 
voting
 
power
 
of
 
all
 
then
 
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 to amend, alter, repeal or adopt any provision of this Certificate of Incorporation.
3.
 
Severability.
 
If any provision or provisions of this Certificate of Incorporation shall be held
to be
 
invalid, illegal
 
or unenforceable
 
as applied
 
to any
 
circumstance for
 
any reason
 
whatsoever, the validity,
legality and enforceability
 
of such provision
 
in any other
 
circumstance and of
 
the remaining provisions
 
of
this Certificate
 
of Incorporation
 
(including, without
 
limitation, each
 
portion of
 
any Section,
 
paragraph or
subparagraph of this Certificate of Incorporation
 
containing any such provision held to
 
be invalid, illegal or
unenforceable that is not itself held to be invalid, illegal or unenforceable) shall
 
not in any way be affected
or impaired thereby.
 
IN WITNESS WHEREOF, this Third Amended and Restated
 
Certificate of Incorporation has
 
been
signed by a duly authorized officer of the Corporation, as of the 27
th
 
day of March, 2025.
/s/ Sherman L. Miller________________________
Sherman L. Miller
President – Chief Executive Officer