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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities
Exchange Act of 1934
Date of Report (Date of earliest event reported):
December 16, 2023
MEGA MATRIX CORP.
(Exact name of registrant as specified in its charter)
Delaware |
|
001-13387 |
|
94-3263974 |
(State or Other Jurisdiction
of
Incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
3000 El Camino Real,
Bldg. 4, Suite 200, Palo Alto, CA |
|
94306 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
650-340-1888
(Registrant’s telephone number, including
area code)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see
General Instruction A.2. below):
☐ | Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol |
|
Name of each exchange on which registered |
Common Stock, $0.001 par value |
|
MPU |
|
NYSE American Exchange LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On December 16, 2023, Mega
Matrix Corp., a Delaware corporation (the “Company”), by resolution of its board of directors (the “Board”), adopted
a Fourth Amended and Restated Bylaws (the “Amended and Restated Bylaws”) for purposes of reducing the quorum required to hold
meetings of the Company’s stockholders (the “Quorum Requirement”). The Amended and Restated Bylaws reduced the Quorum
Requirement from a majority to one-third (1/3) of the Company’s outstanding shares entitled to vote, represented in person or by
proxy. The Company reduced the Quorum Requirement to one-third (1/3) for purposes of ensuring that the Company, whose majority stockholders
now consist of holders whose shares are held in street name and thus are often not voted in stockholder actions, may achieve quorum at
the Company’s 2023 annual meeting of stockholders, which is scheduled to be held on Friday, December 29, 2023 at 10:00 am (PST)
(the “Annual Meeting”). The Company does not anticipate that the reduced Quorum Requirement will have any effect on the Company’s
business, aside from making it easier to hold its Annual Meeting.
The
Amended and Restated Bylaws became effective immediately upon its adoption by the Board.
The above description of the
Amended and Restated Bylaws does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the
Amended and Restated bylaws, which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Item 9.01. Financial
Statement and Exhibits
(d) Exhibits
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| Mega Matrix Corp. |
| a Delaware corporation |
| | |
| By: | /s/ Yucheng Hu |
| | Yucheng Hu, Chief Executive
Officer |
Dated: December 18, 2023
2
Exhibit 3.1
FOURTH AMENDED AND RESTATED BYLAWS
OF
MEGA MATRIX CORP.
(a Delaware Corporation)
as amended and restated on December 16, 2023
ARTICLE I
OFFICES
Section 1.01 Registered Office.
The registered office of Mega Matrix Corp. (the “Corporation”) will be fixed in the Certificate of Incorporation of
the Corporation (the “Certificate of Incorporation”).
Section 1.02 Other Offices.
The Corporation may have other offices, both within and without the State of Delaware, as the board of directors of the Corporation (the
“Board of Directors”) from time to time shall determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF THE STOCKHOLDERS
Section 2.01 Place of Meetings.
All meetings of the stockholders shall be held at such place, if any, either within or without the State of Delaware, or by means of remote
communication, as shall be designated from time to time by resolution of the Board of Directors and stated in the notice of meeting.
Section 2.02 Annual Meeting.
The annual meeting of the stockholders for the election of directors and for the transaction of such other business as may properly come
before the meeting in accordance with these by-laws shall be held at such date, time, and place, if any, as shall be determined by the
Board of Directors and stated in the notice of the meeting.
Section 2.03 Special Meetings.
(a) Purpose.
Special meetings of stockholders for any purpose or purposes shall be called only:
(i) by
the Board of Directors; or
(ii) by
the Secretary (as defined in Section 4.01) following receipt of one or more written demands to call a special meeting of the stockholders
in accordance with, and subject to, this Section 2.03 from stockholders of record who own, in the aggregate, at least Twenty Five percent
(25%) of the voting power of the outstanding shares of the Corporation then entitled to vote on the matter or matters to be brought before
the proposed special meeting.
(b) Notice.
A request to the Secretary shall be delivered to him or her at the Corporation’s principal executive offices and signed by each
stockholder, or a duly authorized agent of such stockholder, requesting the special meeting and shall set forth:
(i) a
brief description of each matter of business desired to be brought before the special meeting;
(ii) the
reasons for conducting such business at the special meeting;
(iii) the
text of any proposal or business to be considered at the special meeting (including the text of any resolutions proposed to be considered
and in the event that such business includes a proposal to amend these by-laws, the language of the proposed amendment); and
(iv) the
information required in Section 2.12(b) of these by-laws (for stockholder nomination demands) or Section 2.12(c) of these by-laws (for
all other stockholder proposal demands), as applicable.
(c) Business.
Business transacted at a special meeting requested by stockholders shall be limited to the matters described in the special meeting request;
provided, however, that nothing herein shall prohibit the Board of Directors from submitting matters to the stockholders at any
special meeting requested by stockholders.
(d) Time
and Date. A special meeting requested by stockholders shall be held at such date and time as may be fixed by the Board of Directors;
provided, however, that the date of any such special meeting shall be not more than 90 days after the request to call the special
meeting is received by the Secretary. Notwithstanding the foregoing, a special meeting requested by stockholders shall not be held if:
(i) the
Board of Directors has called or calls for an annual or special meeting of the stockholders to be held within 90 days after the Secretary
receives the request for the special meeting and the Board of Directors determines in good faith that the business of such meeting includes
(among any other matters properly brought before the meeting) the business specified in the request;
(ii) the
stated business to be brought before the special meeting is not a proper subject for stockholder action under applicable law;
(iii) an
identical or substantially similar item (a “Similar Item”) was presented at any meeting of stockholders held within
120 days prior to the receipt by the Secretary of the request for the special meeting (and, for purposes of this Section 2.03(d)(iii),
the election of directors shall be deemed a Similar Item with respect to all items of business involving the election or removal of directors);
or
(iv) the
special meeting request was made in a manner that involved a violation of Regulation 14A under the Securities Exchange Act of 1934, as
amended and the rules and regulations promulgated thereunder (the “Exchange Act”).
(e) Revocation.
A stockholder may revoke a request for a special meeting at any time by written revocation delivered to the Secretary, and if, following
such revocation, there are unrevoked requests from stockholders holding in the aggregate less than the requisite number of shares entitling
the stockholders to request the calling of a special meeting, the Board of Directors, in its discretion, may cancel the special meeting.
Section 2.04 Adjournments.
Any meeting of the stockholders, annual or special, may be adjourned from time to time to reconvene at the same or some other place,
if any, and notice need not be given of any such adjourned meeting if the time, place, if any, thereof and the means of remote
communication, if any, are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Corporation may
transact any business which might have been transacted at the original meeting. If the adjournment is for more than 30 days, a
notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the
adjournment a new record date is fixed for stockholders entitled to vote at the adjourned meeting, the Board of Directors shall fix
a new record date for notice of the adjourned meeting and shall give notice of the adjourned meeting to each stockholder of record
entitled to vote at the adjourned meeting as of the record date fixed for notice of the adjourned meeting.
Section 2.05 Notice of Meetings.
Notice of the place (if any), date, hour, the record date for determining the stockholders entitled to vote at the meeting (if such date
is different from the record date for stockholders entitled to notice of the meeting), and means of remote communication, if any, of every
meeting of stockholders shall be given by the Corporation not less than ten days nor more than 60 days before the meeting (unless a different
time is specified by law) to every stockholder entitled to vote at the meeting as of the record date for determining the stockholders
entitled to notice of the meeting. Notices of special meetings shall also specify the purpose or purposes for which the meeting has been
called. Notices of meetings to stockholders may be given by mailing the same, addressed to the stockholder entitled thereto, at such stockholder’s
mailing address as it appears on the records of the corporation and such notice shall be deemed to be given when deposited in the U.S.
mail, postage prepaid. Without limiting the manner by which notices of meetings otherwise may be given effectively to stockholders, any
such notice may be given by electronic transmission in the manner provided in Section 232 of the Delaware General Corporation Law. Notice
of any meeting need not be given to any stockholder who shall, either before or after the meeting, submit a waiver of notice or who shall
attend such meeting, except when the stockholder attends for the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or convened. Any stockholder so waiving notice of the meeting shall
be bound by the proceedings of the meeting in all respects as if due notice thereof had been given.
Section 2.06 List of Stockholders.
The Corporation shall prepare a complete list of the stockholders entitled to vote at any meeting of stockholders (provided, however,
if the record date for determining the stockholders entitled to vote is less than ten days before the date of the meeting, the list shall
reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the
address of each stockholder and the number of shares of capital stock of the Corporation registered in the name of each stockholder at
least ten days before any meeting of the stockholders. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting for a period of at least ten days before the meeting: (a) on a reasonably accessible electronic network, provided
that the information required to gain access to such list was provided with the notice of the meeting; or (b) during ordinary business
hours, at the principal place of business of the Corporation. If the meeting is to be held at a place, the list shall also be produced
and kept at the time and place of the meeting the whole time thereof and may be inspected by any stockholder who is present. If the meeting
is held solely by means of remote communication, the list shall also be open for inspection by any stockholder during the whole time of
the meeting as provided by applicable law. Except as provided by applicable law, the stock ledger of the Corporation shall be the only
evidence as to who are the stockholders entitled to examine the stock ledger and the list of stockholders or to vote in person or by proxy
at any meeting of stockholders.
Section 2.07 Quorum. Unless
otherwise required by law, the Certificate of Incorporation or these by-laws, at each meeting of the stockholders, the holders of one-third
of the outstanding shares of the Corporation entitled to vote at the meeting, represented in person or by proxy, shall constitute a quorum.
If, however, such quorum shall not be present or represented at any meeting of the stockholders, the chair of the meeting or the stockholders
entitled to vote thereat, present in person or represented by proxy, by the affirmative vote of a majority in voting power thereof, shall
have power to adjourn the meeting from time to time, in the manner provided in Section 2.04, until a quorum shall be present or represented.
A quorum, once established, shall not be broken by the subsequent withdrawal of enough votes to leave less than a quorum. At any such
adjourned meeting at which there is a quorum, any business may be transacted that might have been transacted at the meeting originally
called.
Section 2.08 Organization.
The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of the stockholders as it shall
deem appropriate. At every meeting of the stockholders, the Chair of the Board, or in his or her absence or inability to act, the Chief
Executive Officer (as defined in Section 4.01), or, in his or her absence or inability to act, the officer or director whom the Board
of Directors shall appoint, shall act as chair of, and preside at, the meeting. The Secretary or, in his or her absence or inability to
act, the person whom the chair of the meeting shall appoint secretary of the meeting, shall act as secretary of the meeting and keep the
minutes thereof. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chair of
any meeting of the stockholders shall have the right and authority to prescribe such rules, regulations, and procedures and to do all
such acts as, in the judgment of such chair, are appropriate for the proper conduct of the meeting. Such rules, regulations, or procedures,
whether adopted by the Board of Directors or prescribed by the chair of the meeting, may include, without limitation, the following:
(a) the
establishment of an agenda or order of business for the meeting;
(b) the
determination of when the polls shall open and close for any given matter to be voted on at the meeting;
(c) rules
and procedures for maintaining order at the meeting and the safety of those present;
(d) 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 chair of the meeting shall determine;
(e) restrictions
on entry to the meeting after the time fixed for the commencement thereof; and
(f) limitations
on the time allotted to questions or comments by participants.
Section 2.09 Voting; Proxies.
(a) General.
Unless otherwise required by law or provided in the Certificate of Incorporation, each stockholder shall be entitled to one vote,
in person or by proxy, for each share of capital stock held by such stockholder.
(b) Election
of Directors. Unless otherwise required by the Certificate of Incorporation, the election of directors shall be by written ballot.
Unless otherwise required by law, the Certificate of Incorporation, or these by-laws, the election of directors shall be decided by a
plurality of the votes cast at a meeting of the stockholders by the holders of stock entitled to vote in the election.
(c) Other
Matters. Unless otherwise required by law, the Certificate of Incorporation, or these by-laws, any matter, other than the election
of directors, brought before any meeting of stockholders shall be decided by the affirmative vote of the majority of shares present in
person or represented by proxy at the meeting and entitled to vote on the matter.
(d) Proxies.
Each stockholder entitled to vote at a meeting of stockholders 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.
Such authorization may be in a writing executed by the stockholder or his or her authorized officer, director, employee, or agent. To
the extent permitted by law, a stockholder may authorize another person or persons to act for him or her 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 the electronic transmission either sets forth or is submitted with information from which it can be determined that the
electronic transmission was authorized by the stockholder. A copy, facsimile transmission, or other reliable reproduction of the proxy
authorized by this Section 2.09(d) may be substituted for or used in lieu of the original writing or electronic transmission for any and
all purposes for which the original writing or electronic transmission could be used, provided that such copy, facsimile transmission,
or other reproduction shall be a complete reproduction of the entire original writing or electronic transmission. A proxy shall be irrevocable
if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable
power. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by delivering to the
Secretary a revocation of the proxy or a new proxy bearing a later date.
Section 2.10 Inspectors at Meetings
of Stockholders. In advance of any meeting of the stockholders, the Board of Directors shall, appoint one or more inspectors, who
may be employees of the Corporation, to act at the meeting or any adjournment thereof and make a written report thereof. The Board of
Directors may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate
is able to act at a meeting, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector,
before entering upon the discharge of 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 inspector or inspectors may appoint or retain other persons or
entities to assist the inspector or inspectors in the performance of their duties. In determining the validity and counting of proxies
and ballots cast at any meeting of stockholders, the inspector or inspectors may consider such information as is permitted by applicable
law. No person who is a candidate for office at an election may serve as an inspector at such election. When executing the duties of inspector,
the inspector or inspectors shall:
(a) ascertain
the number of shares outstanding and the voting power of each;
(b) determine
the shares represented at the meeting and the validity of proxies and ballots;
(c) count
all votes and ballots;
(d) determine
and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and
(e) certify
their determination of the number of shares represented at the meeting and their count of all votes and ballots.
Section 2.11 Fixing the Record
Date.
(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 of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date shall not be more than sixty (60) nor less than ten (10) days
before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice
is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination
of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the determination of stockholders entitled to notice
of or to vote at 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 of Directors 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 sixty (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 of Directors adopts the resolution relating thereto.
Section 2.12 Advance Notice of
Stockholder Nominations and Proposals.
(a) Annual
Meetings. At a meeting of the stockholders, only such nominations of persons for the election of directors and such other business
shall be conducted as shall have been properly brought before the meeting. Except for nominations that are included in the Corporation’s
annual meeting proxy statement pursuant to Section 2.13, to be properly brought before an annual meeting, nominations or such other business
must be:
(i) specified
in the notice of meeting (or any supplement thereto) given by or at the direction of the Board of Directors or any committee thereof;
(ii) otherwise
properly brought before the meeting by or at the direction of the Board of Directors or any committee thereof; or
(iii) otherwise
properly brought before an annual meeting by a stockholder who is a stockholder of record of the Corporation at the time such notice of
meeting is delivered, who is entitled to vote at the meeting, and who complies with the notice procedures set forth in this Section 2.12.
In addition, any proposal of business (other than
the nomination of persons for election to the Board of Directors) must be a proper matter for stockholder action. For business (including,
but not limited to, director nominations) to be properly brought before an annual meeting by a stockholder pursuant to Section 2.12(a)(iii),
the stockholder or stockholders of record intending to propose the business (the “Proposing Stockholder”) must have
given timely notice thereof pursuant to this Section 2.12(a), in writing to the Secretary even if such matter is already the subject of
any notice to the stockholders or Public Disclosure from the Board of Directors. To be timely, a Proposing Stockholder’s notice
for an annual meeting must be delivered to or mailed and received at the principal executive offices of the Corporation: (x) not later
than the close of business on the 90th day, nor earlier than the close of business on the 120th day, in advance
of the anniversary of the previous year’s annual meeting if such meeting is to be held on a day which is not more than 30 days in
advance of the anniversary of the previous year’s annual meeting or not later than 60 days after the anniversary of the previous
year’s annual meeting; and (y) with respect to any other annual meeting of stockholders, including in the event that no annual meeting
was held in the previous year, not earlier than the close of business on the 120th day prior to the annual meeting and not
later than the close of business on the later of: (1) the 90th day prior to the annual meeting and (2) the close of business
on the tenth day following the first date of Public Disclosure of the date of such meeting. In no event shall the Public Disclosure of
an adjournment or postponement of an annual meeting commence a new notice time period (or extend any notice time period). For the purposes
of this Section 2.12 and Section 2.13, “Public Disclosure” shall mean a disclosure made in a press release reported
by the Dow Jones News Services, The Associated Press, or a comparable national news service or in a document filed by the Corporation
with the Securities and Exchange Commission (“SEC”) pursuant to Section 13, 14, or 15(d) of the Exchange Act.
(b) Stockholder
Nominations. For the nomination of any person or persons for election to the Board of Directors pursuant to Section 2.12(a)(iii) or
Section 2.12(d), a Proposing Stockholder’s notice to the Secretary shall set forth or include:
(i) the
name, age, business address, and residence address of each nominee proposed in such notice;
(ii) the
principal occupation or employment of each such nominee;
(iii) the
class and number of shares of capital stock of the Corporation which are owned of record and beneficially by each such nominee (if any);
(iv) such
other information concerning each such nominee as would be required to be disclosed in a proxy statement soliciting proxies for the election
of such nominee as a director in an election contest (even if an election contest is not involved) or that is otherwise required to be
disclosed, under Section 14(a) of the Exchange Act;
(v) a
written questionnaire with respect to the background and qualification of such proposed nominee (which questionnaire shall be provided
by the Secretary upon written request) and a written statement and agreement executed by each such nominee acknowledging that such person:
(A) consents
to being named in the Company’s proxy statement as a nominee and to serving as a director if elected,
(B) intends
to serve as a director for the full term for which such person is standing for election, and
(C) makes
the following representations: (1) that the director nominee has read and agrees to adhere to the Corporation’s CODE OF BUSINESS
CONDUCT AND ETHICS, and any other of the Corporation’s policies or guidelines applicable to directors, including with regard
to securities trading, and (2) that the director nominee is not and will not become a party to any agreement, arrangement, or understanding
with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation,
will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation or
any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the Corporation,
with such person’s fiduciary duties under applicable law,and (3) that the director nominee is not and will not become a party to
any agreement, arrangement, or understanding with any person or entity other than the Corporation with respect to any direct or indirect
compensation, reimbursement, or indemnification (“Compensation Arrangement”) that has not been disclosed to the Corporation
in connection with such person’s nomination for director or service as a director; and
(vi) as
to the Proposing Stockholder:
(A) the
name and address of the Proposing Stockholder as they appear on the Corporation’s books and of the beneficial owner, if any, on
whose behalf the nomination is being made,
(B) the
class and number of shares of the Corporation which are owned by the Proposing Stockholder (beneficially and of record) and owned by the
beneficial owner, if any, on whose behalf the nomination is being made, as of the date of the Proposing Stockholder’s notice, and
a representation that the Proposing Stockholder will notify the Corporation in writing of the class and number of such shares owned of
record and beneficially as of the record date for the meeting within five business days after the record date for such meeting,
(C) a
description of any agreement, arrangement, or understanding with respect to such nomination between or among the Proposing Stockholder
or the beneficial owner, if any, on whose behalf the nomination is being made and any of their affiliates or associates, and any others
(including their names) acting in concert with any of the foregoing, and a representation that the Proposing Stockholder will notify the
Corporation in writing of any such agreement, arrangement, or understanding in effect as of the record date for the meeting within five
business days after the record date for such meeting,
(D) a
description of any agreement, arrangement, or understanding (including any derivative or short positions, profit interests, options, hedging
transactions, and borrowed or loaned shares) that has been entered into as of the date of the Proposing Stockholder’s notice by,
or on behalf of, the Proposing Stockholder or the beneficial owner, if any, on whose behalf the nomination is being made and any of their
affiliates or associates, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or
increase or decrease the voting power of such person or any of their affiliates or associates with respect to shares of stock of the Corporation,
and a representation that the Proposing Stockholder will notify the Corporation in writing of any such agreement, arrangement, or understanding
in effect as of the record date for the meeting within five business days after the record date for such meeting,
(E) a
representation that the Proposing Stockholder is a holder of record of shares of the Corporation entitled to vote at the meeting and intends
to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice, and
(F) a
representation whether the Proposing Stockholder intends to deliver a proxy statement and/or form of proxy to holders of at least the
percentage of the Corporation’s outstanding capital stock required to approve the nomination and/or otherwise to solicit proxies
from stockholders in support of the nomination. The Corporation may require any proposed nominee to furnish such other information as
it may reasonably require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation
or that could be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such nominee.
(c) Other
Stockholder Proposals. For all business other than director nominations, a Proposing Stockholder’s notice to the Secretary shall
set forth as to each matter the Proposing Stockholder proposes to bring before the annual meeting:
(i) a
brief description of the business desired to be brought before the annual meeting;
(ii) the
reasons for conducting such business at the annual meeting;
(iii) the
text of any proposal or business (including the text of any resolutions proposed for consideration and in the event that such business
includes a proposal to amend these by-laws, the language of the proposed amendment);
(iv) any
substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) in such business of such stockholder and the
beneficial owner (within the meaning of Section 13(d) of the Exchange Act), if any, on whose behalf the business is being proposed;
(v) any
other information relating to such stockholder and beneficial owner, if any, on whose behalf the proposal is being made, required to be
disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for the proposal and pursuant
to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder;
(vi) a
description of all agreements, arrangements, or understandings between or among such stockholder, the beneficial owner, if any, on whose
behalf the proposal is being made, any of their affiliates or associates, and any other person or persons (including their names) in connection
with the proposal of such business and any material interest of such stockholder, beneficial owner, or any of their affiliates or associates,
in such business, including any anticipated benefit therefrom to such stockholder, beneficial owner, or their affiliates or associates;
and
(vii) the
information required by Section 2.12(b)(vi) above.
(d) 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 of Directors may be
made at a special meeting of stockholders called by the Board of Directors at which directors are to be elected pursuant to the Corporation’s
notice of meeting:
(i) by
or at the direction of the Board of Directors or any committee thereof; or
(ii) provided
that the Board of Directors has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who
is a stockholder of record at the time the notice provided for in this Section 2.12(d) is delivered to the Secretary, who is entitled
to vote at the meeting, and upon such election and who complies with the notice procedures set forth in this Section 2.12.
In the event the Corporation calls a special meeting
of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder entitled to vote in
such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the
Corporation’s notice of meeting, if such stockholder delivers a stockholder’s notice that complies with the requirements of
Section 2.12(b) to the Secretary at its principal executive offices not earlier than the close of business on the 120th day
prior to such special meeting and not later than the close of business on the later of: (x) the 90th day prior to such special
meeting; or (y) the tenth (10th) day following the date of the first Public Disclosure of the date of the special meeting and of the nominees
proposed by the Board of Directors to be elected at such meeting. In no event shall the Public Disclosure of an adjournment or postponement
of a special meeting commence a new time period (or extend any notice time period).
(e) Effect
of Noncompliance. Only such persons who are nominated in accordance with the procedures set forth in this Section 2.12 or Section
2.13 shall be eligible to be elected at any meeting of stockholders of the Corporation to serve as directors and only such other business
shall be conducted at a meeting as shall be brought before the meeting in accordance with the procedures set forth in this Section 2.12
or Section 2.13, as applicable. If any proposed nomination was not made or proposed in compliance with this Section 2.12 or Section 2.13,
as applicable, or other business was not made or proposed in compliance with this Section 2.12, then except as otherwise required by law,
the chair of the meeting shall have the power and duty to declare that such nomination shall be disregarded or that such proposed other
business shall not be transacted. Notwithstanding anything in these by-laws to the contrary, unless otherwise required by law, if a Proposing
Stockholder intending to propose business or make nominations at an annual meeting or propose a nomination at a special meeting pursuant
to this Section 2.12 does not provide the information required under this Section 2.12 to the Corporation, including the updated information
required by Section 2.12(b)(vi)(B), Section 2.12(b)(vi)(C), and Section 2.12(b)(vi)(D) within five business days after the record date
for such meeting or the Proposing Stockholder (or a qualified representative of the Proposing Stockholder) does not appear at the meeting
to present the proposed business or nominations, such business or nominations shall not be considered, notwithstanding that proxies in
respect of such business or nominations may have been received by the Corporation.
(f) Rule
14a-8. This Section 2.12 and Section 2.13 shall not apply to a proposal proposed to be made by a stockholder if the stockholder has
notified the Corporation of the stockholder’s intention to present the proposal at an annual or special meeting only pursuant to
and in compliance with Rule 14a-8 under the Exchange Act and such proposal has been included in a proxy statement that has been prepared
by the Corporation to solicit proxies for such meeting.
Section 2.13 Proxy Access.
(a) Inclusion
of Proxy Access Stockholder Nominee in Proxy Statement. Subject to the provisions of this Section 2.13, the Corporation shall include
in its proxy statement (including its form of proxy and ballot) for an annual meeting of stockholders the name of any stockholder nominee
for election to the Board of Directors submitted pursuant to this Section 2.13 (each a “Proxy Access Stockholder Nominee”)
provided:
(i) timely
written notice of such Proxy Access Stockholder Nominee satisfying this Section 2.13 (“Proxy Access Notice”) is delivered
to the Corporation by or on behalf of a stockholder or stockholders that, at the time the Proxy Access Notice is delivered, satisfy the
ownership and other requirements of this Section 2.13 (such stockholder or stockholders, and any person on whose behalf they are acting,
the “Eligible Stockholder”);
(ii) the
Eligible Stockholder expressly elects in writing at the time of providing the Proxy Access Notice to have its Proxy Access Stockholder
Nominee included in the Corporation’s proxy statement pursuant to this Section 2.13; and
(iii) the
Eligible Stockholder and the Proxy Access Stockholder Nominee otherwise satisfy the requirements of this Section 2.13.
(b) Timely
Notice. To be timely, the Proxy Access Notice must be delivered to the Secretary at the principal executive offices of the Corporation,
not later than 120 days nor more than 150 days prior to the first anniversary of the date (as stated in the Corporation’s proxy
materials) that the Corporation’s definitive proxy statement was first sent to stockholders in connection with the preceding year’s
annual meeting of stockholders/of the preceding year’s annual meeting; provided, however, that in the event that the date
of the annual meeting is advanced by more than 30 days or delayed by more than 60 days from the anniversary of the preceding year’s
annual meeting, or if no annual meeting was held in the preceding year, the Proxy Access Notice must be so delivered not earlier than
the close of business on the 150th day prior to such annual meeting and not later than the close of business on the later of: (i) the
120th day prior to such annual meeting; or (ii) the 10th day following the day on which Public Disclosure of the date of such annual meeting
is first made by the Corporation. In no event shall the public announcement of an adjournment or postponement of an annual meeting commence
a new time period (or extend any time period) for the giving of the Proxy Access Notice.
(c) Information
to be Included in Proxy Statement. In addition to including the name of the Proxy Access Stockholder Nominee in the Corporation’s
proxy statement for the annual meeting, the Corporation shall also include (collectively, the “Required Information”):
(i) the
information concerning the Proxy Access Stockholder Nominee and the Eligible Stockholder that is required to be disclosed in the Corporation’s
proxy statement pursuant to the Exchange Act, and the rules and regulations promulgated thereunder; and
(ii) if
the Eligible Stockholder so elects, a written statement of the Eligible Stockholder (or in the case of a group, a written statement of
the group), not to exceed 500 words, in support of its Proxy Access Stockholder Nominee, which must be provided at the same time as the
Proxy Access Notice for inclusion in the Corporation’s proxy statement for the annual meeting (a “Statement”).
Notwithstanding anything to the contrary contained
in this Section 2.13, the Corporation may omit from its proxy materials any information or Statement that it, in good faith, believes
is untrue in any material respect (or omits a material fact necessary in order to make the statements made, in light of the circumstances
under which they are made, not misleading) or would violate any applicable law, rule, regulation, or listing standard. Additionally, nothing
in this Section 2.13 shall limit the Corporation’s ability to solicit against and include in its proxy statement its own statements
relating to any Proxy Access Stockholder Nominee.
(d) Proxy
Access Stockholder Nominee Limits. The number of Proxy Access Stockholder Nominees (including Proxy Access Stockholder Nominees that
were submitted by an Eligible Stockholder for inclusion in the Corporation’s proxy statement pursuant to this Section 2.13 but either
are subsequently withdrawn or that the Board of Directors decides to nominate (a “Board Nominee”)) appearing in the
Corporation’s proxy statement with respect to a meeting of stockholders shall not exceed the greater of: (x) two; or (y) 20% of
the number of directors in office as of the last day on which notice of a nomination may be delivered pursuant to this Section 2.13 (the
“Final Proxy Access Nomination Date”) or, if such amount is not a whole number, the closest whole number below 20%
(the “Permitted Number”); provided, however, that:
(i) in
the event that one or more vacancies for any reason occurs on the Board of Directors at any time after the Final Proxy Access Nomination
Date and before the date of the applicable annual meeting of stockholders and the Board of Directors resolves to reduce the size of the
Board of Directors in connection therewith, the Permitted Number shall be calculated based on the number of directors in office as so
reduced; and
(ii) any
Proxy Access Stockholder Nominee who is included in the Corporation’s proxy statement for a particular meeting of stockholders but
either: (A) withdraws from or becomes ineligible or unavailable for election at the meeting, or (B) does not receive a number of votes
cast in favor of his or her election at least equal to 25% of the shares present in person or represented by proxy at the annual meeting
and entitled to vote on the Proxy Access Stockholder Nominee’s election, shall be ineligible to be included in the Corporation’s
proxy statement as a Proxy Access Stockholder Nominee pursuant to this Section 2.13 for the next two annual meetings of stockholders following
the meeting for which the Proxy Access Stockholder Nominee has been nominated for election; and
(iii) any
director in office as of the nomination deadline who was included in the Corporation’s proxy statement as a Proxy Access Stockholder
Nominee for any of the two preceding annual meetings and whom the Board of Directors decides to nominate for election to the Board of
Directors also will be counted against the Permitted Number.
In the event that the number of Proxy Access Stockholder
Nominees submitted by Eligible Stockholders pursuant to this Section 2.13 exceeds the Permitted Number, each Eligible Stockholder shall
select one Proxy Access Stockholder Nominee for inclusion in the Corporation’s proxy statement until the Permitted Number is reached,
going in order of the amount (from greatest to least) of voting power of the Corporation’s capital stock entitled to vote on the
election of directors as disclosed in the Proxy Access Notice. If the Permitted Number is not reached after each Eligible Stockholder
has selected one Proxy Access Stockholder Nominee, this selection process shall continue as many times as necessary, following the same
order each time, until the Permitted Number is reached.
(e) Eligibility
of Nominating Stockholder; Stockholder Groups. An Eligible Stockholder must have owned (as defined below) continuously for at least
three years a number of shares that represents 3% or more of the outstanding shares of the Corporation entitled to vote in the election
of directors (the “Required Shares”) as of both the date the Proxy Access Notice is delivered to or received by the
Corporation in accordance with this Section 2.13 and the record date for determining stockholders entitled to vote at the meeting and
must intend to continue to own the Required Shares for at least one year following the date of the annual meeting/deliver a statement
regarding the Eligible Stockholder’s intent with respect to continued ownership of the Required Shares for at least one year following
the annual meeting. For purposes of satisfying the ownership requirement under this Section 2.13, the voting power represented by the
shares of the Corporation’s capital stock owned by one or more stockholders, or by the person or persons who own shares of the Corporation’s
capital stock and on whose behalf any stockholder is acting, may be aggregated, provided that:
(i) the
number of stockholders and other persons whose ownership of shares is aggregated for such purpose shall not exceed 10; and
(ii) each
stockholder or other person whose shares are aggregated shall have held such shares continuously for at least three years.
Whenever an Eligible Stockholder consists of a
group of stockholders and/or other persons, any and all requirements and obligations for an Eligible Stockholder set forth in this Section
2.13 must be satisfied by and as to each such stockholder or other person, except that shares may be aggregated to meet the Required Shares
as provided in this Section 2.13(e). With respect to any one particular annual meeting, no stockholder or other person may be a member
of more than one group of persons constituting an Eligible Stockholder under this Section 2.13.
(f) Funds.
A group of two or more funds shall be treated as one stockholder or person for this Section 2.13 provided that the other terms and conditions
in this Section 2.13 are met (including Section 2.13(h)(v)(A)) and the funds are:
(i) under
common management and investment control;
(ii) under
common management and funded primarily by the same employer (or by a group of related employers that are under common control); or
(iii) a
“group of investment companies,” as such term is defined in Section 12(d)(1)(G)(ii) of the Investment Company Act of 1940,
as amended.
(g) Ownership.
For purposes of this Section 2.13, an Eligible Stockholder shall be deemed to “own” only those outstanding shares of
the Corporation’s capital stock as to which the person possesses both:
(i) the
full voting and investment rights pertaining to the shares; and
(ii) the
full economic interest in (including the opportunity for profit and risk of loss on) such shares; provided that the number of shares calculated
in accordance with clauses (i) and (ii) shall not include any shares:
(A) sold
by such person or any of its affiliates in any transaction that has not been settled or closed,
(B) borrowed
by such person or any of its affiliates for any purposes or purchased by such person or any of its affiliates pursuant to an agreement
to resell, or
(C) subject
to any option, warrant, forward contract, swap, contract of sale, other derivative, or similar agreement entered into by such person or
any of its affiliates, whether any such instrument or agreement is to be settled with shares or with cash based on the notional amount
or value of outstanding shares of the Corporation’s capital stock, in any such case which instrument or agreement has, or is intended
to have, the purpose or effect of: (1) reducing in any manner, to any extent or at any time in the future, such person’s or affiliates’
full right to vote or direct the voting of any such shares; and/or (2) hedging, offsetting, or altering to any degree gain or loss arising
from the full economic ownership of such shares by such person or affiliate.
An Eligible Stockholder “owns”
shares held in the name of a nominee or other intermediary so long as the Eligible Stockholder retains the right to instruct how the shares
are voted with respect to the election of directors and possesses the full economic interest in the shares. An Eligible Stockholder’s
ownership of shares shall be deemed to continue during any period in which the Eligible Stockholder has delegated any voting power by
means of a proxy, power of attorney, or other instrument or arrangement that is revocable at any time by the person. An Eligible Stockholder’s
ownership of shares shall be deemed to continue during any period in which the Eligible Stockholder has loaned such shares, provided that
the Eligible Stockholder has the power to recall such loaned shares on three business days’ notice and recalls such loaned shares
not more than three business days after being notified that any of its Proxy Access Stockholder Nominees will be included in the Corporation’s
proxy statement. The terms “owned,” “owning,” and other variations of the word “own”
shall have correlative meanings. For purposes of this Section 2.13, the term “affiliate” shall have the meaning ascribed
thereto in the regulations promulgated under the Exchange Act.
(h) Nomination
Notice and Other Eligible Stockholder Deliverables. An Eligible Stockholder must provide with its Proxy Access Notice the following
information in writing to the Secretary:
(i) one
or more written statements from the record holder of the shares (and from each intermediary through which the shares are or have been
held during the requisite three-year holding period) verifying that, as of a date within seven calendar days prior to the date the Proxy
Access Notice is delivered to or received by the Corporation, the Eligible Stockholder owns, and has owned continuously for the preceding
three years, the Required Shares, and the Eligible Stockholder’s agreement to provide:
(A) within
five business days after the record date for the meeting, written statements from the record holder and intermediaries verifying the Eligible
Stockholder’s continuous ownership of the Required Shares through the record date, and
(B) immediate
notice if the Eligible Stockholder ceases to own any of the Required Shares prior to the date of the applicable annual meeting of stockholders;
(ii) the
Eligible Stockholder’s representation and agreement that the Eligible Stockholder (including each member of any group of stockholders
that together is an Eligible Stockholder under this Section 2.13):
(A) intends
to continue to satisfy the eligibility requirements described in this Section 2.13 through the date of the annual meeting, including a
statement that the Eligible Stockholder intends to continue to own the Required Shares for at least one year following the date of the
annual meeting/regarding the Eligible Stockholder’s intent with respect to continued ownership of the Required Shares for at least
one year following the annual meeting,
(B) acquired
the Required Shares in the ordinary course of business and not with the intent to change or influence control of the Corporation, and
does not presently have such intent,
(C) has
not nominated and will not nominate for election to the Board of Directors at the meeting any person other than the Proxy Access Stockholder
Nominee(s) being nominated pursuant to this Section 2.13,
(D) has
not engaged and will not engage in, and has not and will not be, a “participant” in another person’s “solicitation”
within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election of any individual as a director at the meeting other
than its Proxy Access Stockholder Nominee(s) or a Board Nominee,
(E) will
not distribute to any stockholder any form of proxy for the meeting other than the form distributed by the Corporation,
(F) has
provided and will provide facts, statements, and other information in all communications with the Corporation and its stockholders that
are or will be true and correct in all material respects and do not and will not omit to state a material fact necessary in order to make
the statements made, in light of the circumstances under which they were made, not misleading,
(G) agrees
to assume all liability stemming from any legal or regulatory violation arising out of the Eligible Stockholder’s communications
with the Corporation’s stockholders or out of the information that the Eligible Stockholder provides to the Corporation,
(H) agrees
to indemnify and hold harmless the Corporation and each of its directors, officers, and employees individually against any liability,
loss, or damages in connection with any threatened or pending action, suit, or proceeding, whether legal, administrative, or investigative,
against the Corporation or any of its directors, officers, or employees arising out of any nomination submitted by the Eligible Stockholder
pursuant to this Section 2.13,
(I) will
file with the SEC any solicitation or other communication with the Corporation’s stockholders relating to the meeting at which the
Proxy Access Stockholder Nominee will be nominated, regardless of whether any such filing is required under Section 14 of the Exchange
Act and the rules and regulations promulgated thereunder or whether any exemption from filing is available for such solicitation or other
communication under Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, and
(J) will
comply with all other applicable laws, rules, regulations, and listing standards with respect to any solicitation in connection with the
meeting;
(iii) the
written consent of each Proxy Access Stockholder Nominee to be named in the Corporation’s proxy statement, and form of proxy and
ballot and, as a nominee and, if elected, to serve as a director;
(iv) a
copy of the Schedule 14N (or any successor form) that has been filed with the SEC as required by Rule 14a-18 under the Exchange Act;
(v) in
the case of a nomination by a group of stockholders that together is an Eligible Stockholder:
(A) documentation
satisfactory to the Corporation demonstrating that a group of funds qualifies pursuant to the criteria set forth in Section 2.13(f) to
be treated as one stockholder or person for purposes of this Section 2.13, and
(B) the
designation by all group members of one group member that is authorized to act on behalf of all members of the nominating stockholder
group with respect to the nomination and matters related thereto, including withdrawal of the nomination; and
(vi) if
desired, a Statement.
(i) Stockholder
Nominee Agreement. Each Proxy Access Stockholder Nominee must:
(i) provide
within five business days of the Corporation’s request an executed agreement, in a form deemed satisfactory to the Corporation,
providing the following representations:
(A) the
Proxy Access Stockholder Nominee has read and agrees to adhere to the Corporation’s CODE OF BUSINESS CONDUCT AND ETHICS,
and any other of the Corporation’s policies or guidelines applicable to directors, including with regard to securities trading,
and
(B) the
Proxy Access Stockholder Nominee is not and will not become a party to: (1) any Voting Commitment that has not been disclosed to the Corporation;
or (2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director of the
Corporation, with such person’s fiduciary duties under applicable law, and
(C) the
Proxy Access Stockholder Nominee is not and will not become a party to any Compensation Arrangement in connection with such person’s
nomination for director or service as a director that has not been disclosed to the Corporation;
(ii) complete,
sign, and submit all questionnaires required of the Corporation’s Board of Directors within five business days of receipt of each
such questionnaire from the Corporation; and
(iii) provide
within five business days of the Corporation’s request such additional information as the Corporation determines may be necessary
to permit the Board of Directors to determine whether such Proxy Access Stockholder Nominee meets the requirements of this Section 2.13
or the Corporation’s requirements with regard to director qualifications and policies and guidelines applicable to directors, including
whether:
(A) such
Proxy Access Stockholder Nominee is independent under the independence requirements, including the committee independence requirements,
set forth in the listing standards of the stock exchange on which shares of the Corporation’s capital stock are listed, any applicable
rules of the SEC, and any publicly disclosed standards used by the Board of Directors in determining and disclosing the independence of
the directors (the “Independence Standards”),
(B) such
Proxy Access Stockholder Nominee has any direct or indirect relationship with the Corporation that has not been deemed categorically immaterial
pursuant to the Corporation’s CODE OF BUSINESS CONDUCT AND ETHICS, and
(C) such
Proxy Access Stockholder Nominee is not and has not been subject to: (1) any event specified in Item 401(f) of Regulation S-K under the
Securities Act of 1933, as amended (the “Securities Act”), or (2) any order of the type specified in Rule 506(d) of
Regulation D under the Securities Act.
(j) Eligible
Stockholder/Proxy Access Stockholder Nominee Undertaking. In the event that any information or communications provided by the Eligible
Stockholder or Proxy Access Stockholder Nominee to the Corporation or its stockholders ceases to be true and correct in any respect or
omits a fact necessary to make the statements made, in light of the circumstances under which they were made, not misleading, each Eligible
Stockholder or Proxy Access Stockholder Nominee, as the case may be, shall promptly notify the Secretary of any such inaccuracy or omission
in such previously provided information and of the information that is required to make such information or communication true and correct.
Notwithstanding the foregoing, the provision of any such notification pursuant to the preceding sentence shall not be deemed to cure any
defect or limit the Corporation’s right to omit a Proxy Access Stockholder Nominee from its proxy materials as provided in this
Section 2.13.
(k) Exceptions
Permitting Exclusion of Proxy Access Stockholder Nominee. The Corporation shall not be required to include pursuant to this Section
2.13 a Proxy Access Stockholder Nominee in its proxy statement (or, if the proxy statement has already been filed, to allow the nomination
of a Proxy Access Stockholder Nominee, notwithstanding that proxies in respect of such vote may have been received by the Corporation):
(i) if
the Eligible Stockholder who has nominated such Proxy Access Stockholder Nominee has nominated for election to the Board of Directors
at the meeting any person other than pursuant to this Section 2.13, or has or is engaged in, or has been or is a “participant”
in another person’s, “solicitation” within the meaning of Rule 14a-1(l) under the Exchange Act in support of the election
of any individual as a director at the meeting other than its Proxy Access Stockholder Nominee(s) or a Board Nominee;
(ii) if
the Corporation has received a notice (whether or not subsequently withdrawn) that a stockholder intends to nominate any candidate for
election to the Board of Directors pursuant to the advance notice requirements in Section 2.12 of these by-laws;
(iii) who
is not independent under the Independence Standards;
(iv) whose
election as a member of the Board of Directors would violate or cause the Corporation to be in violation of these by-laws, the Corporation’s
CODE OF BUSINESS CONDUCT AND ETHICS, or other document setting forth qualifications for directors, the listing standards of the
stock exchange on which shares of the Corporation’s capital stock is listed, or any applicable state or federal law, rule, or regulation;
(v) if
the Proxy Access Stockholder Nominee is or becomes a party to any undisclosed Voting Commitment;
(vi) if
the Proxy Access Stockholder Nominee is or becomes a party to any undisclosed Compensation Arrangement;
(vii) who
is or has been, within the past three years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust
Act of 1914;
(viii) who
is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in such
a criminal proceeding within the past ten years;
(ix) who
is subject to any order of the type specified in Rule 506(d) of Regulation D under the Securities Act; or
(x) if
such Proxy Access Stockholder Nominee or the applicable Eligible Stockholder shall have provided information to the Corporation in respect
of such nomination that was untrue in any material respect or omitted to state a material fact necessary in order to make the statement
made, in light of the circumstances under which they were made, not misleading or shall have breached its or their agreements, representations,
undertakings, or obligations pursuant to this Section 2.13.
(l) Invalidity.
Notwithstanding anything to the contrary set forth herein, the Board of Directors or the person presiding at the meeting shall be entitled
to declare a nomination by an Eligible Stockholder to be invalid, and such nomination shall be disregarded notwithstanding that proxies
in respect of such vote may have been received by the Corporation; and the Corporation shall not be required to include in its proxy statement
any successor or replacement nominee proposed by the applicable Eligible Stockholder or any other Eligible Stockholder if:
(i) the
Proxy Access Stockholder Nominee and/or the applicable Eligible Stockholder shall have breached its or their agreements, representations,
undertakings, or obligations pursuant to this Section 2.13, as determined by the Board of Directors or the person presiding at the meeting;
or
(ii) the
Eligible Stockholder (or a qualified representative thereof) does not appear at the meeting to present any nomination pursuant to this
Section 2.13.
(m) Interpretation.
The Board of Directors (and any other person or body authorized by the Board of Directors) shall have the power and authority to interpret
this Section 2.13 and to make any and all determinations necessary or advisable to apply this Section 2.13 to any persons, facts, or circumstances,
including the power to determine whether:
(i) a
person or group of persons qualifies as an Eligible Stockholder;
(ii) outstanding
shares of the Corporation’s capital stock are “owned” for purposes of meeting the ownership requirements of this Section
2.13;
(iii) a
notice complies with the requirements of this Section 2.13;
(iv) a
person satisfies the qualifications and requirements to be a Proxy Access Stockholder Nominee;
(v) inclusion
of the Required Information in the Corporation’s proxy statement is consistent with all applicable laws, rules, regulations, and
listing standards; and
(vi) any
and all requirements of this Section 2.13 have been satisfied.
(vii) Any
such interpretation or determination adopted in good faith by the Board of Directors (or any other person or body authorized by the Board
of Directors) shall be conclusive and binding on all persons, including the Corporation and all record or beneficial owners of stock of
the Corporation.
Section 2.14 Consent Of Stockholders
In Lieu Of Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at
any Annual or Special Meeting of Stockholders of the Corporation, 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. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall
be given to those stockholders who have not consented in writing.
ARTICLE III
BOARD OF DIRECTORS
Section 3.01 General Powers.
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The Board of Directors
may adopt such rules and procedures, not inconsistent with the Certificate of Incorporation, these by-laws, or applicable law, as it may
deem proper for the conduct of its meetings and the management of the Corporation.
Section 3.02 Number; Term of
Office. The Board of Directors shall consist of five (5) or more members, the exact number of which shall be fixed from time to time
solely by the Board of Directors. Until changed by such a resolution of directors, the number of directors shall be five (5). Each
director shall hold office until a successor is duly elected and qualified or until the director’s earlier death, resignation, disqualification,
or removal.
Section 3.03 Newly Created Directorships
and Vacancies. Any newly created directorships resulting from an increase in the authorized number of directors and any vacancies
occurring in the Board of Directors, shall be filled solely by the affirmative votes of a majority of the remaining members of the Board
of Directors, although less than a quorum, or by a sole remaining director. A director so elected shall be elected to hold office until
the earlier of the expiration of the term of office of the director whom he or she has replaced, a successor is duly elected and qualified,
or the earlier of such director’s death, resignation, or removal.
Section 3.04 Resignation.
Any director may resign at any time by notice given in writing or by electronic transmission to the Corporation. Such resignation shall
take effect at the date of receipt of such notice by the Corporation or at such later effective date or upon the happening of an event
or events as is therein specified. A resignation that is conditioned on a director failing to receive a specified vote for reelection
as a director may provide that it is irrevocable. A verbal resignation shall not be deemed effective until confirmed by the director in
writing or by electronic transmission to the Corporation.
Section 3.05 Removal. Except
as prohibited by applicable law or the Certificate of Incorporation, the stockholders holding a majority of the shares then entitled to
vote at an election of directors may remove any director from office with or without cause.
Section 3.06 Fees and
Expenses. Directors shall receive such reasonable fees for their services on the Board of Directors and any committee thereof
and such reimbursement of their actual and reasonable expenses as may be fixed or determined by the Board of Directors.
Section 3.07 Regular Meetings.
Regular meetings of the Board of Directors may be held without notice at such times and at such places as may be determined from
time to time by the Board of Directors.
Section 3.08 Special Meetings.
Special meetings of the Board of Directors may be held at such times and at such places as may be determined by the Chair of the Board
or the Chief Executive Officer on at least 24 hours’ notice to each director given by one of the means specified in Section 3.11
hereof other than by mail or on at least three days’ notice if given by mail. Special meetings shall be called by the Chair of the
Board or the Chief Executive Officer in like manner and on like notice on the written request of any three (3) or more directors. The
notice need not state the purposes of the special meeting and, unless indicated in the notice thereof, any and all business may be transacted
at a special meeting.
Section 3.09 Telephone Meetings.
Board of Directors or Board of Directors committee meetings may be held by means of telephone conference or other communications equipment
by means of which all persons participating in the meeting can hear each other and be heard. Participation by a director in a meeting
pursuant to this Section 3.09 shall constitute presence in person at such meeting.
Section 3.10 Adjourned Meetings.
A majority of the directors present at any meeting of the Board of Directors, including an adjourned meeting, whether or not a quorum
is present, may adjourn and reconvene such meeting to another time and place. At least 24 hours’ notice of any adjourned meeting
of the Board of Directors shall be given to each director whether or not present at the time of the adjournment, if such notice shall
be given by one of the means specified in Section 3.11 hereof other than by mail, or at least three days’ notice if by mail. Any
business may be transacted at an adjourned meeting that might have been transacted at the meeting as originally called.
Section 3.11 Notices. Subject
to Section 3.08, Section 3.10, and Section 3.12 hereof, whenever notice is required to be given to any director by applicable law, the
Certificate of Incorporation, or these by-laws, such notice shall be deemed given effectively if given in person or by telephone, mail
addressed to such director at such director’s address as it appears on the records of the Corporation, facsimile, e-mail, or by
other means of electronic transmission.
Section 3.12 Waiver of Notice.
Whenever notice to directors is required by applicable law, the Certificate of Incorporation, or these by-laws, a waiver thereof, in writing
signed by, or by electronic transmission by, the director entitled to the notice, whether before or after such notice is required, shall
be deemed equivalent to notice. Attendance by a director at a meeting shall constitute a waiver of notice of such meeting except when
the director attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business
on the ground that the meeting was not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any
regular or special Board of Directors or committee meeting need be specified in any waiver of notice.
Section 3.13 Organization.
At each regular or special meeting of the Board of Directors, the Chair of the Board or, in his or her absence, another director selected
by the Board of Directors shall preside. The Secretary shall act as secretary at each meeting of the Board of Directors. If the Secretary
is absent from any meeting of the Board of Directors, an assistant secretary of the Corporation shall perform the duties of secretary
at such meeting; and in the absence from any such meeting of the Secretary and all assistant secretaries of the Corporation, the person
presiding at the meeting may appoint any person to act as secretary of the meeting.
Section 3.14 Quorum of Directors.
Except as otherwise provided by these by-laws, the Certificate of Incorporation, or required by applicable law, the presence of a majority
of the total number of directors on the Board of Directors shall be necessary and sufficient to constitute a quorum for the transaction
of business at any meeting of the Board of Directors.
Section 3.15 Action by Majority
Vote. Except as otherwise provided by these by-laws, the Certificate of Incorporation, or required by applicable law, the vote of
a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
Section 3.16 Directors’
Action Without 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 of Directors or of any committee thereof may be taken without a meeting if all directors or members
of such committee, as the case may be, consent thereto in writing or by electronic transmission.
Section 3.17 Chair of the Board.
The Board of Directors shall annually elect one of its members to be its chair (the “Chair of the Board”) and shall
fill any vacancy in the position of Chair of the Board at such time and in such manner as the Board of Directors shall determine. Except
as otherwise provided in these by-laws, the Chair of the Board shall preside at all meetings of the Board of Directors and of stockholders.
The Chair of the Board shall perform such other duties and services as shall be assigned to or required of the Chair of the Board by the
Board of Directors.
Section 3.18 Committees of the
Board of Directors. The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors
of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace
any absent or disqualified member at any meeting of the committee. If a member of a committee shall be absent from any meeting, or disqualified
from voting thereat, the remaining member or members present at the meeting and not disqualified from voting, whether or not such member
or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of
any such absent or disqualified member. Any such committee, to the extent permitted by applicable law, shall have and may exercise all
the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation and may authorize
the seal of the Corporation to be affixed to all papers that may require it to the extent so authorized by the Board of Directors. Unless
the Board of Directors provides otherwise, at all meetings of such committee, a majority of the then authorized members of the committee
shall constitute a quorum for the transaction of business, and the vote of a majority of the members of the committee present at any meeting
at which there is a quorum shall be the act of the committee. Each committee shall keep regular minutes of its meetings. Unless the Board
of Directors provides otherwise, each committee designated by the Board of Directors may make, alter and repeal rules and procedures for
the conduct of its business. In the absence of such rules and procedures each committee shall conduct its business in the same manner
as the Board of Directors conducts its business pursuant to this Article III.
ARTICLE IV
OFFICERS
Section 4.01 Positions and Election.
The officers of the Corporation shall be chosen by the Board of Directors and shall include a chief executive officer (the “Chief
Executive Officer”), a president (the “President”), a chief financial officer (the “Chief Financial
Officer”), a treasurer (the “Treasurer”), and a secretary (the “Secretary”). The Board
of Directors, in its discretion, may also elect one or more vice presidents, assistant treasurers, assistant secretaries, and other officers
in accordance with these by-laws. Any two or more offices may be held by the same person.
Section 4.02 Term. Each officer
of the Corporation shall hold office until such officer’s successor is elected and qualified or until such officer’s earlier
death, resignation, or removal. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors at
any time with or without cause by the majority vote of the members of the Board of Directors then in office. The removal of an officer
shall be without prejudice to his or her contract rights, if any. The election or appointment of an officer shall not of itself create
contract rights. Any officer of the Corporation may resign at any time by giving written notice of his or her resignation to the President
or the Secretary. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective
shall not be specified therein, immediately upon its receipt. Unless otherwise specified therein, the acceptance of such resignation shall
not be necessary to make it effective. Should any vacancy occur among the officers, the position shall be filled for the unexpired portion
of the term by appointment made by the Board of Directors.
Section 4.03 Chief Executive
Officer. The Chief Executive Officer shall, subject to the provisions of these by-laws and the control of the Board of Directors,
have general supervision, direction, and control over the business of the Corporation and over its officers. The Chief Executive Officer
shall perform all duties incident to the office of the Chief Executive Officer, and any other duties as may be from time to time assigned
to the Chief Executive Officer by the Board of Directors, in each case subject to the control of the Board of Directors.
Section 4.04 President. The
President shall report and be responsible to the Chief Executive Officer. The President shall have such powers and perform such duties
as from time to time may be assigned or delegated to the President by the Board of Directors or the Chief Executive Officer or that are
incident to the office of president.
Section 4.05 Vice Presidents.
Each vice president of the Corporation shall have such powers and perform such duties as may be assigned to him or her from time to time
by the Board of Directors, the Chief Executive Officer, or the President, or that are incident to the office of vice president.
Section 4.06 Secretary. The
Secretary shall attend all sessions of the Board of Directors and all meetings of the stockholders and record all votes and the minutes
of all proceedings in a book to be kept for that purpose, and shall perform like duties for committees of the Board of Directors when
required. He or she shall give, or cause to be given, notice of all meetings of the stockholders and meetings of the Board of Directors,
and shall perform such other duties as may be prescribed by the Board of Directors, the Chair of the Board, or the Chief Executive Officer.
The Secretary shall keep in safe custody the seal of the Corporation and have authority to affix the seal to all documents requiring it
and attest to the same.
Section 4.07 Chief Financial
Officer. The Chief Financial Officer shall be the principal financial officer of the Corporation and shall have such powers and perform
such duties as may be assigned by the Board of Directors, the Chair of the Board, or the Chief Executive Officer.
Section 4.08 Treasurer. The
treasurer of the Corporation shall have the custody of the Corporation’s funds and securities, except as otherwise provided by the
Board of Directors, and shall keep full and accurate accounts of receipts and disbursements in records belonging to 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. The treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking
proper vouchers for such disbursements, and shall render to the Chief Executive Officer and the President and the directors, at the regular
meetings of the Board of Directors, or whenever they may require it, an account of all his or her transactions as treasurer and of the
financial condition of the Corporation.
Section 4.09 Other Officers.
Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned
to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such
other officers and to prescribe their respective duties and powers.
Section 4.10 Duties of Officers
May Be Delegated. In case any officer is absent, or for any other reason that the Board of Directors may deem sufficient, the Chief
Executive Officer or the President or the Board of Directors may delegate for the time being the powers or duties of such officer to any
other officer or to any director.
ARTICLE V
INDEMNIFICATION
Section 5.01 Indemnification.
The Corporation shall indemnify and hold harmless to the fullest extent permitted by applicable law as it presently exists or may hereafter
be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative (a “Proceeding”), by reason of the fact that he or she, or
a person for whom he or she is the legal representative, is or was a director, officer, employee, or agent of the Corporation or, while
a director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust, enterprise, or nonprofit entity, including service with
respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) actually and
reasonably incurred by such person. Notwithstanding the preceding sentence, the Corporation shall be required to indemnify a person in
connection with a Proceeding (or part thereof) commenced by such person only if the commencement of such Proceeding (or part thereof)
by the person was authorized in the specific case by the Board of Directors.
Section 5.02 Advancement of Expenses.
The Corporation shall pay the expenses (including attorneys’ fees) actually and reasonably incurred by a director, officer,
employee, or agent of the Corporation in defending any Proceeding in advance of its final disposition, upon receipt of an undertaking
by or on behalf of such person to repay all amounts advanced if it shall ultimately be determined by final judicial decision from which
there is no further right to appeal that such person is not entitled to be indemnified for such expenses under this Section 5.02 or otherwise.
Payment of such expenses actually and reasonably incurred by such person, may be made by the Corporation, subject to such terms and conditions
as the general counsel of the Corporation in his or her discretion deems appropriate.
Section 5.03 Non-Exclusivity
of Rights. The rights conferred on any person by this Article V will not be exclusive of any other right which such person may have
or hereafter acquire under any statute, provision of the Certificate of Incorporation, these by-laws, agreement, vote of stockholders
or disinterested directors, or otherwise, both as to action in his or her official capacity and as to action in another capacity while
holding office. The Corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers,
employees, or agents respecting indemnification and advances, to the fullest extent not prohibited by the DGCL.
Section 5.04 Other Indemnification.
The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee,
or agent of another corporation, partnership, joint venture, trust, enterprise, or nonprofit entity shall be reduced by any amount such
person may collect as indemnification from such other corporation, partnership, joint venture, trust, enterprise, or nonprofit entity.
Section 5.05 Insurance. The
Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation,
or is or was serving at the request of Corporation as a director, officer, employee, or agent of another corporation, partnership, joint
venture, trust, enterprise, or nonprofit entity against any liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against
such liability under the provisions of the DGCL.
Section 5.06 Repeal, Amendment,
or Modification. Any amendment, repeal, or modification of this Article V shall not adversely affect any right or protection hereunder
of any person in respect of any act or omission occurring prior to the time of such repeal or modification.
ARTICLE VI
STOCK CERTIFICATES AND THEIR TRANSFER
Section 6.01 Certificates Representing
Shares. The shares of stock of the Corporation shall be represented by certificates; provided that the Board of Directors may provide
by resolution or resolutions that some or all of any class or series shall be uncertificated shares that may be evidenced by a book-entry
system maintained by the registrar of such stock. If shares are represented by certificates, such certificates shall be in the form, other
than bearer form, approved by the Board of Directors. The certificates representing shares of stock shall be signed by, or in the name
of, the Corporation by any two authorized officers of the Corporation. Any or all such signatures may be facsimiles. Although any officer,
transfer agent, or registrar whose manual or facsimile signature is affixed to such a certificate ceases to be such officer, transfer
agent, or registrar before such certificate has been issued, it may nevertheless be issued by the Corporation with the same effect as
if such officer, transfer agent, or registrar were still such at the date of its issue.
Section 6.02 Transfers of Stock.
Stock of the Corporation shall be transferable in the manner prescribed by law and in these by-laws. Transfers of stock shall be made
on the books administered by or on behalf of the Corporation only by the direction of the registered holder thereof or such person’s
attorney, lawfully constituted in writing, and, in the case of certificated shares, upon the surrender to the Company or its transfer
agent or other designated agent of the certificate thereof, which shall be cancelled before a new certificate or uncertificated shares
shall be issued.
Section 6.03 Transfer Agents
and Registrars. The Board of Directors may appoint, or authorize any officer or officers to appoint, one or more transfer agents and
one or more registrars.
Section 6.04 Lost, Stolen, or
Destroyed Certificates. The Board of Directors or the Secretary may direct a new certificate or uncertificated shares to be issued
in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed upon the making of an
affidavit of that fact by the owner of the allegedly lost, stolen, or destroyed certificate. When authorizing such issue of a new certificate
or uncertificated shares, the Board of Directors or the Secretary may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of the lost, stolen, or destroyed certificate, or the owner’s legal representative to give the Corporation
a bond sufficient to indemnify it against any claim that may be made against the Corporation with respect to the certificate alleged to
have been lost, stolen, or destroyed or the issuance of such new certificate or uncertificated shares.
ARTICLE VII
GENERAL PROVISIONS
Section 7.01 Seal. The seal
of the Corporation shall be in such form as shall be approved by the Board of Directors. The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise, as may be prescribed by law or custom or by the Board of Directors.
Section 7.02 Fiscal Year.
The fiscal year of the Corporation shall be the calendar year.
Section 7.03 Checks, Notes, Drafts,
Etc. All checks, notes, drafts, or other orders for the payment of money of the Corporation shall be signed, endorsed, or accepted
in the name of the Corporation by such officer, officers, person, or persons as from time to time may be designated by the Board of Directors
or by an officer or officers authorized by the Board of Directors to make such designation.
Section 7.04 Conflict with Applicable
Law or Certificate of Incorporation. These by-laws are adopted subject to any applicable law and the Certificate of Incorporation.
Whenever these by-laws may conflict with any applicable law or the Certificate of Incorporation, such conflict shall be resolved in favor
of such law or the Certificate of Incorporation.
Section 7.05 Books and Records.
Any records administered by or on behalf of the Corporation in the regular course of its business, including its stock ledger, books of
account, and minute books, may be maintained on any information storage device, method, or one or more electronic networks or databases
(including one or more distributed electronic networks or databases); provided that the records so kept can be converted into clearly
legible paper form within a reasonable time, and, with respect to the stock ledger, the records so kept comply with Section 224 of the
DGCL. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to
applicable law.
Section 7.06 Forum for Adjudication
of Disputes. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State
of Delaware (or, if the Court of Chancery does not have jurisdiction, the federal district court for the District of Delaware) shall be
the sole and exclusive forum for:
(a) any
derivative action or proceeding brought on behalf of the Corporation;
(b) any
action asserting a claim for breach of a fiduciary duty owed by any director, officer, employee, or agent of the Corporation to the Corporation
or the Corporation’s stockholders;
(c) any
action asserting a claim arising pursuant to any provision of the Delaware General Corporation Law, the Certificate of Incorporation,
or these by-laws; or
(d) any
action asserting a claim governed by the internal affairs doctrine;
in each case, subject to said court having personal
jurisdiction over the indispensable parties named as defendants therein. If any action the subject matter of which is within the scope
of this Section 7.06 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 this Section 7.06
(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. 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 Section 7.06.
ARTICLE VIII
AMENDMENTS
These by-laws may be adopted,
amended, or repealed by the stockholders entitled to vote; provided, however, that the Corporation may, in its Certificate of Incorporation,
confer the power to adopt, amend, or repeal these by-laws upon the Board of Directors; and, provided further, that any proposal by a stockholder
to amend these by-laws will be subject to the provisions of Article II of these by-laws except as otherwise required by law. The fact
that such power has been so conferred upon the Board of Directors will not divest the stockholders of the power, nor limit their power
to adopt, amend, or repeal by-laws.
CERTIFICATE OF SECTARY
I HEREBY CERTIFY that I am
the duly elected, qualified and acting Corporate Secretary of Mega Matrix Corp., a Delaware corporation (the “Corporation”),
and that the above and foregoing Fourth Amended and Restated Bylaws were adopted as the Bylaws of the Corporation as of December 16, 2023
by the Board of Directors pursuant to Section 109 of the Delaware General Corporation Law and the Corporation’s Certificate of Incorporation,
as amended.
|
/s/
Qin (Carol) Wang |
|
Qin (Carol) Wang, Secretary |
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