1008-00002 · Lumos Analytics Inc · Governance Documents

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AMENDED AND RESTATED BYLAWS

LUMOS ANALYTICS INC.

(a Delaware corporation)

Adopted Effective as of __, 2022

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PREAMBLE

These Amended and Restated Bylaws (these "Bylaws") of Lumos Analytics Inc., a Delaware corporation (the "Corporation"), are adopted effective as of __, 2022 (the "Effective Date"), being the date of the closing of the Corporation's initial public offering of Class A Common Stock (the "IPO").

These Bylaws amend and restate in their entirety the bylaws of the Corporation previously in effect. In the event of any conflict between the provisions of these Bylaws and the provisions of the Amended and Restated Certificate of Incorporation of the Corporation (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Certificate of Incorporation") filed with the Secretary of State of the State of Delaware, the Certificate of Incorporation shall control. All references herein to the Certificate of Incorporation shall mean the Certificate of Incorporation as in effect from time to time.

ARTICLE I — OFFICES

Section 1.1 — Registered Office.

The registered office of the Corporation in the State of Delaware shall be located at Capitol Registered Agents LLC, 850 New Burton Road, Suite 201, Dover, Delaware 19904, and the name of the Corporation's registered agent at such address shall be Capitol Registered Agents LLC. The registered office and registered agent of the Corporation may be changed from time to time by resolution of the Board of Directors of the Corporation (the "Board of Directors" or the "Board") in the manner provided by the Delaware General Corporation Law (the "DGCL").

Section 1.2 — Principal Office.

The principal executive office of the Corporation shall be located at 450 Folsom Street, Suite 1200, San Francisco, California 94105. The Board of Directors may change the location of the principal executive office of the Corporation from time to time as it deems advisable, and shall give notice of any such change to the stockholders of the Corporation in the manner required by applicable law.

Section 1.3 — Other Offices.

The Corporation may have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or as the business of the Corporation may require. Without limiting the generality of the foregoing, the Corporation is qualified to do business in the States of California, New York, Texas, and Illinois, and may maintain offices in each such jurisdiction as the Board of Directors determines to be necessary or appropriate in furtherance of the Corporation's business.

ARTICLE II — MEETINGS OF STOCKHOLDERS

Section 2.1 — Annual Meetings.

An annual meeting of the stockholders of the Corporation shall be held on such date, at such time, and at such place (if any), within or without the State of Delaware, or by means of remote communication, as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. At each annual meeting, the stockholders shall elect directors to succeed those directors whose terms expire at such meeting and shall transact such other business as may properly be brought before the meeting in accordance with these Bylaws. The Board of Directors may postpone, reschedule, or cancel any previously scheduled annual meeting of stockholders.

Section 2.2 — Special Meetings.

Special meetings of the stockholders of the Corporation may be called at any time only by (a) the Chairperson of the Board of Directors, (b) the Chief Executive Officer of the Corporation, or (c) the Board of Directors pursuant to a resolution adopted by a majority of the total number of directors then in office. Stockholders of the Corporation shall not have the right to call or cause the calling of a special meeting of the stockholders of the Corporation. This limitation on the ability of stockholders to call a special meeting is consistent with the Corporation's governance structure, including the dual-class capital structure in which shares of Class B Common Stock carry ten (10) votes per share.

Business transacted at any special meeting of the stockholders shall be limited to the matters stated in the notice of the meeting as provided in Section 2.3 of these Bylaws. The Board of Directors may postpone, reschedule, or cancel any previously scheduled special meeting of stockholders.

Section 2.3 — Notice of Meetings.

Written notice of each annual and special meeting of the stockholders of the Corporation shall be given to each stockholder of record entitled to vote at such meeting. The notice shall state the date, time, and place (if any) of the meeting, and, if the meeting is to be held by means of remote communication, the means of remote communication by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting. In the case of a special meeting, the notice shall also state the purpose or purposes for which the meeting has been called.

Unless otherwise required by law or the Certificate of Incorporation, written notice of each meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting. Notice may be given personally, by mail (first class, postage prepaid), or by electronic transmission in accordance with Section 232 of the DGCL. If mailed, notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder's address as it appears on the records of the Corporation. If given by electronic transmission, notice shall be deemed given at the time specified in Section 232 of the DGCL.

A written waiver of notice signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a stockholder at a meeting shall constitute a waiver of notice of such meeting, except when the stockholder attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business at the meeting on the ground that the meeting was not lawfully called or convened.

Section 2.4 — Record Date.

In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders, or any adjournment thereof, or to express consent to or dissent from corporate action in writing without a meeting (to the extent permitted), or entitled to receive payment of any dividend or other distribution or allotment of any rights, or 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 by the Board of Directors. The record date for any such purpose shall not be more than sixty (60) nor less than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior to any other action requiring determination of stockholders.

If no record date is fixed by the Board of Directors: (a) 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; and (b) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

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 determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for the determination of stockholders entitled to vote at the adjourned meeting.

Section 2.5 — Quorum.

The holders of a majority of the voting power of the outstanding shares of stock of the Corporation entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. For purposes of determining the presence of a quorum, the aggregate voting power of all outstanding shares shall be calculated with reference to the voting rights of each class of stock as set forth in the Certificate of Incorporation, including shares of Class A Common Stock (one (1) vote per share) and shares of Class B Common Stock (ten (10) votes per share).

If a quorum shall not be present or represented at any meeting of the stockholders, the chairperson of the meeting or the holders of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented; provided, however, that if the adjournment is for more than thirty (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 for stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting. At any such adjourned meeting at which a quorum shall be present or represented, any business may be transacted that might have been transacted at the meeting as originally called.

Section 2.6 — Voting.

Unless otherwise required by law, the Certificate of Incorporation, or these Bylaws:

(a) Each holder of shares of Class A Common Stock shall be entitled to one (1) vote per share of Class A Common Stock held of record by such holder on each matter properly submitted to a vote of the stockholders.

(b) Each holder of shares of Class B Common Stock shall be entitled to ten (10) votes per share of Class B Common Stock held of record by such holder on each matter properly submitted to a vote of the stockholders.

All references herein to the voting rights of any class or series of stock are subject in all respects to the Certificate of Incorporation, which shall constitute the definitive statement of the voting rights attached to each class and series of the Corporation's capital stock.

Except as otherwise required by law, the Certificate of Incorporation, or these Bylaws, all matters other than the election of directors shall be decided by the affirmative vote of the holders of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the matter. The election of directors shall be governed by Section 3.4 of these Bylaws.

Section 2.7 — Proxies.

Every stockholder entitled to vote at a meeting of the stockholders, or to express consent or dissent to corporate action without a meeting (to the extent permitted), may authorize another person or persons to act for such stockholder by proxy. Such authorization may be granted by an instrument in writing or by electronic transmission in the manner permitted by Section 212 of the DGCL.

No proxy shall be voted or acted upon after three (3) years from the date of its execution, unless the proxy provides for a longer period. A duly executed 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. Each proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting at which such proxy is to be exercised.

Section 2.8 — Stockholder Action by Written Consent.

Following the IPO Effective Date, no action required or permitted to be taken at any annual or special meeting of the stockholders of the Corporation may be taken without a meeting, without prior notice, and without a vote, by written consent or electronic consent or otherwise. This prohibition on action by written consent of stockholders shall be subject to and governed by the provisions of the Certificate of Incorporation, which shall control in the event of any conflict with this Section 2.8.

Section 2.9 — Organization and Conduct of Meetings.

The Chairperson of the Board of Directors shall preside at all meetings of the stockholders. In the absence of the Chairperson of the Board, the Chief Executive Officer of the Corporation shall preside at such meetings. In the absence of both the Chairperson of the Board and the Chief Executive Officer, a person appointed by the Board of Directors shall preside at such meetings. The Secretary of the Corporation shall act as secretary of each meeting of the stockholders. In the absence of the Secretary, an assistant secretary of the Corporation, or if no assistant secretary is present, a person appointed by the chairperson of the meeting, shall act as secretary of the meeting.

The chairperson of any meeting of the stockholders shall have the authority to establish rules for the conduct of the meeting, including, without limitation, rules regarding: (a) the order of business; (b) the time allotted to each speaker and the procedures governing remarks by stockholders and other persons; (c) the maintenance of order and the safety of those attending; (d) restrictions on entry to the meeting after the time fixed for commencement thereof; (e) limitations on attendance at or participation in the meeting to stockholders of record, their duly authorized and constituted proxies, and such other persons as the chairperson of the meeting shall determine; and (f) the circumstances under which any person may make a motion or second a motion. The chairperson of the meeting shall also determine when the polls shall be opened and closed for any given matter to be voted upon. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting.

Section 2.10 — Inspectors of Election.

Before any meeting of stockholders, the Board of Directors may appoint one or more inspectors of election to act at the meeting or at any adjournment thereof. If no inspectors of election are so appointed, the chairperson of the meeting may, and upon the request of any stockholder or the stockholder's proxy shall, appoint one or more inspectors of election to act at the meeting. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the best of such inspector's ability. The inspectors of election shall have the duties prescribed by Section 231 of the DGCL, including: (a) ascertaining the number of shares outstanding and the voting power of each; (b) determining the shares represented at a meeting and the validity of proxies and ballots; (c) counting all votes and ballots; (d) determining and retaining for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and (e) certifying their determination of the number of shares represented at the meeting and their count of all votes and ballots.

Section 2.11 — Stockholder List.

The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make available, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date), arranged in alphabetical order and showing the address of each stockholder and the number and class of shares registered in the name of each stockholder.

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 (10) days prior to the meeting: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting; or (b) during ordinary business hours at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be examined by any stockholder who is present.

ARTICLE III — BOARD OF DIRECTORS

Section 3.1 — General Powers.

The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as otherwise provided by the DGCL or the Certificate of Incorporation. In addition to the powers and authority expressly conferred upon them by statute, by the Certificate of Incorporation, or by these Bylaws, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the DGCL, the Certificate of Incorporation, and these Bylaws.

Directors need not be stockholders of the Corporation or residents of the State of Delaware.

Section 3.2 — Number of Directors.

The total number of directors constituting the entire Board of Directors shall be fixed from time to time exclusively by resolution adopted by a majority of the total number of directors then in office. The initial number of directors constituting the Board of Directors following the IPO shall be seven (7). No reduction in the authorized number of directors shall have the effect of removing any director before such director's term of office expires.

Section 3.3 — Classification of the Board.

The Board of Directors shall be divided into three (3) classes, designated as Class I, Class II, and Class III, as nearly equal in number as possible. The Board of Directors is authorized to assign members of the Board already in office to such classes at the time the classification becomes effective. Each director shall serve for a term ending on the date of the third annual meeting of stockholders following the annual meeting at which such director was elected; provided, however, that each initial director in Class I shall serve for a term expiring at the Corporation's first annual meeting of stockholders following the IPO; each initial director in Class II shall serve for a term expiring at the Corporation's second annual meeting of stockholders following the IPO; and each initial director in Class III shall serve for a term expiring at the Corporation's third annual meeting of stockholders following the IPO.

At each annual meeting of the stockholders, successors to the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the third succeeding annual meeting of stockholders. Each director shall hold office until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal from office.

If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case shall a decrease in the number of directors shorten the term of any incumbent director.

Section 3.4 — Election of Directors.

Directors shall be elected at each annual meeting of the stockholders by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote on the election of directors. For the avoidance of doubt, the persons receiving the greatest number of votes of the stockholders, up to the number of directors to be elected, shall be deemed elected. There shall be no cumulative voting in the election of directors.

Section 3.5 — Vacancies and Newly Created Directorships.

Subject to the rights of the holders of any series of Preferred Stock then outstanding, vacancies on the Board of Directors resulting from death, resignation, disqualification, removal, or any other cause, and newly created directorships resulting from any increase in the authorized number of directors, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining director. Stockholders shall not have any right to fill vacancies on the Board of Directors. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of the director's predecessor. Any director elected to fill a vacancy resulting from an increase in the authorized number of directors shall serve for the remainder of the full term of the class of directors in which the new directorship was created and until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal.

Section 3.6 — Removal of Directors.

Subject to the rights of the holders of any series of Preferred Stock then outstanding, any director or the entire Board of Directors may be removed from office only for cause and only by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66⅔%) of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class. For purposes of this Section 3.6, "cause" shall mean (a) a final, non-appealable conviction of a felony involving moral turpitude, (b) willful misconduct that is materially and demonstrably injurious to the Corporation, or (c) a final, non-appealable judicial determination that such director breached his or her duty of loyalty to the Corporation or its stockholders.

Section 3.7 — Resignation of Directors.

Any director may resign at any time by giving notice in writing or by electronic transmission to the Chairperson of the Board of Directors, the Chief Executive Officer, or the Secretary of the Corporation. A resignation shall be effective upon receipt thereof or at such later time as shall be specified in the notice. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. If a resignation is made effective at a later date and the Board of Directors accepts such future effective date, the Board of Directors may fill the pending vacancy before the effective date if the Board provides that the successor director does not take office until the effective date of the resignation.

Section 3.8 — Compensation of Directors.

Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated annual retainer. Members of special or standing committees may be allowed compensation for attending committee meetings. No such compensation shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. The Compensation Committee of the Board of Directors, or such other committee as the Board may designate, shall periodically review and make recommendations to the Board regarding the form and amount of compensation for non-employee directors.

Section 3.9 — Regular Meetings.

Regular meetings of the Board of Directors may be held at such times, dates, and places (within or without the State of Delaware) as shall be determined from time to time by resolution of the Board of Directors. Notice of regular meetings need not be given if the time and place of such meetings have been fixed by the Board of Directors; provided, however, that if the Board of Directors changes the date, time, or place of a regular meeting, notice of such change shall be given to each director in the manner described in Section 3.10 of these Bylaws. A meeting of the Board of Directors may be held without notice immediately after the annual meeting of the stockholders at the same place at which such meeting is held.

Section 3.10 — Special Meetings.

Special meetings of the Board of Directors may be called by the Chairperson of the Board of Directors, the Chief Executive Officer, or a majority of the total number of directors then in office. Notice of any special meeting of the Board of Directors shall be given to each director at least twenty-four (24) hours before the meeting if given personally, by telephone, or by electronic transmission (including electronic mail), or at least forty-eight (48) hours before the meeting if given by mail (first class, postage prepaid). The notice need not specify the purpose or purposes of the special meeting of the Board of Directors, and the transaction of any business at such special meeting shall not be invalidated by the failure of the notice to specify such purpose or purposes.

Section 3.11 — Quorum and Voting.

At all meetings of the Board of Directors, a majority of the total number of directors then in office shall constitute a quorum for the transaction of business. The act of the Board of Directors shall require the affirmative vote of a majority of the directors present at a meeting at which a quorum is present. If a quorum shall not be present at any meeting of the Board of Directors, a majority of the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. A director who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless such director's dissent shall be entered in the minutes of the meeting, or unless the director shall file a written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof, or shall forward such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting.

Section 3.12 — Action by Written Consent of Directors.

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 members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or such committee. Such consent shall have the same force and effect as a unanimous vote of the Board of Directors or committee, as applicable, and may be stated as such in any certificate or document filed with the Secretary of State of the State of Delaware or delivered to any third party.

Section 3.13 — Meetings by Telephone or Other Communications Equipment.

Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.13 shall constitute presence in person at the meeting.

Section 3.14 — Committees of the Board.

The Board of Directors may, by resolution passed by a majority of the total number of directors then in office, designate one or more committees of the Board of Directors, each consisting of one or more 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. Any committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors establishing such committee, 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, except that no committee shall have the power or authority to: (a) approve, adopt, or recommend to the stockholders any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval; or (b) adopt, amend, or repeal any bylaw of the Corporation.

Without limiting the generality of the foregoing, the Board of Directors shall establish and maintain the following standing committees in compliance with applicable Nasdaq listing standards and the rules and regulations of the Securities and Exchange Commission:

(a) Audit Committee. The Audit Committee shall be comprised of at least three (3) independent directors who each satisfy the independence requirements of Nasdaq Listing Rule 5605(c)(2) and Rule 10A-3 under the Securities Exchange Act of 1934, as amended. At least one member of the Audit Committee shall be an "audit committee financial expert" as defined under Item 407(d)(5) of Regulation S-K. The Audit Committee shall have the duties and responsibilities set forth in its charter, as adopted and amended from time to time by the Board of Directors.

(b) Compensation Committee. The Compensation Committee shall be comprised of at least two (2) independent directors who each satisfy the independence requirements of Nasdaq Listing Rule 5605(d)(2). The Compensation Committee shall have the duties and responsibilities set forth in its charter, as adopted and amended from time to time by the Board of Directors.

(c) Nominating and Corporate Governance Committee. The Nominating and Corporate Governance Committee shall be comprised of at least two (2) independent directors who each satisfy the independence requirements of Nasdaq Listing Rule 5605(a)(2). The Nominating and Corporate Governance Committee shall have the duties and responsibilities set forth in its charter, as adopted and amended from time to time by the Board of Directors.

Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors as requested. Members of any committee may be removed by the Board of Directors at any time, with or without cause, by the affirmative vote of a majority of the total number of directors then in office.

Section 3.15 — Reliance on Records and Reports.

A member of the Board of Directors, or a member of any committee designated by the Board of Directors, shall, in the performance of such person's duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports, or statements presented to the Corporation by any of the Corporation's officers or employees, or committees of the Board of Directors, or by any other person as to matters the director reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation, in accordance with Section 141(e) of the DGCL.

ARTICLE IV — OFFICERS

Section 4.1 — Officers Generally.

The officers of the Corporation shall include a Chief Executive Officer, a President, a Secretary, and a Chief Financial Officer, each of whom shall be appointed by the Board of Directors. The Corporation may also have, at the discretion of the Board of Directors, a Chairperson of the Board, one or more Vice Presidents (including Executive Vice Presidents and Senior Vice Presidents), a Treasurer, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers as may from time to time be appointed by the Board of Directors. Any two (2) or more offices may be held by the same person; provided, however, that the Secretary and the Chief Executive Officer shall not be the same person. Officers need not be stockholders of the Corporation or residents of the State of Delaware.

Section 4.2 — Appointment and Term.

All officers of the Corporation shall be appointed by the Board of Directors. Each officer shall hold office until a successor shall have been duly appointed and shall have qualified, or until such officer's earlier death, resignation, or removal. The appointment of an officer shall not of itself create contractual rights in favor of such officer.

Section 4.3 — Removal.

Any officer of the Corporation may be removed at any time, with or without cause, by the Board of Directors. Such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation, but the appointment of an officer shall not of itself create contractual rights.

Section 4.4 — Resignation.

Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors, the Chairperson of the Board, the Chief Executive Officer, or the Secretary of the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date or an effective date determined upon the happening of an event or events. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

Section 4.5 — Chief Executive Officer.

The Chief Executive Officer shall have general supervision and control of the business and affairs of the Corporation, subject to the direction and oversight of the Board of Directors. In the absence of the Chairperson of the Board, the Chief Executive Officer shall preside at all meetings of the stockholders. The Chief Executive Officer shall have the power, on behalf of the Corporation, to execute bonds, mortgages, contracts, agreements, and other instruments, as authorized by the Board of Directors. The Chief Executive Officer shall perform all duties incident to the office of Chief Executive Officer and such other duties as may be prescribed by the Board of Directors from time to time. The Chief Executive Officer shall also have the authority to appoint and remove subordinate officers, employees, and agents of the Corporation, subject to the authority of the Board of Directors to appoint and remove officers.

Section 4.6 — President.

The President shall have such duties and powers as may from time to time be assigned by the Board of Directors or the Chief Executive Officer. In the absence of the Chief Executive Officer, or in the event of the Chief Executive Officer's inability or refusal to act, the President shall perform the duties of the Chief Executive Officer and, when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer.

Section 4.7 — Chief Financial Officer.

The Chief Financial Officer shall have custody of the corporate funds and securities of the Corporation and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation. The Chief Financial Officer 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 for that purpose by the Board of Directors or pursuant to authority delegated by the Board. The Chief Financial Officer 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 Board of Directors, at its regular meetings or when the Board of Directors so requires, an account of all such officer's transactions as Chief Financial Officer and of the financial condition of the Corporation. The Chief Financial Officer shall perform all duties incident to the office of Chief Financial Officer and such other duties as the Board of Directors or the Chief Executive Officer may from time to time prescribe.

Section 4.8 — Secretary.

The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings thereat in a book or books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors in accordance with these Bylaws and as required by law. The Secretary shall be the custodian of the corporate seal (if any) and the corporate records of the Corporation and shall see that the corporate seal is affixed to all documents the execution of which on behalf of the Corporation under its seal is duly authorized. The Secretary shall maintain or cause to be maintained the stock ledger and stockholder list of the Corporation and shall have the authority to certify the bylaws, resolutions of the Board of Directors and stockholders, and other documents of the Corporation as true and correct copies thereof. The Secretary shall perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned by the Board of Directors or the Chief Executive Officer.

Section 4.9 — Other Officers.

Such other officers as the Board of Directors may choose shall perform such duties and have such powers as may be assigned to them from time to time by the Board of Directors or by the officer to whom they report. The Board of Directors may delegate to any other officer of the Corporation the power to choose subordinate officers and to prescribe the respective duties and powers of such subordinate officers.

Section 4.10 — Compensation of Officers.

The compensation of all officers of the Corporation shall be fixed by the Board of Directors or, to the extent delegated by the Board, by the Compensation Committee of the Board of Directors. No officer shall be prevented from receiving such compensation by reason of the fact that the officer is also a director of the Corporation.

ARTICLE V — ADVANCE NOTICE OF STOCKHOLDER NOMINATIONS AND OTHER BUSINESS

Section 5.1 — Annual Meetings — Nominations and Other Business.

Nominations of persons for election to the Board of Directors and the proposal of other business to be considered by the stockholders at an annual meeting of the stockholders may be made only:

(a) pursuant to the Corporation's notice of the meeting (or any supplement thereto) delivered by or at the direction of the Board of Directors or any duly authorized committee thereof;

(b) by or at the direction of the Board of Directors or a committee appointed by the Board of Directors; or

(c) by a stockholder of the Corporation who (i) was a stockholder of record of the Corporation at the time the notice provided for in this Section 5.1 is delivered to the Secretary of the Corporation, (ii) is a stockholder of record at the time of the annual meeting, (iii) is entitled to vote at the annual meeting, and (iv) complies with the notice procedures set forth in this Section 5.1 and Section 5.2 of these Bylaws, as to such stockholder's nominations or other business; or

(d) by an Eligible Stockholder (as defined in Section 5.3) in compliance with the proxy access provisions of Section 5.3 of these Bylaws, but only as to nominations for directors.

For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of the foregoing paragraph, the stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation at the principal executive offices of the Corporation, 450 Folsom Street, Suite 1200, San Francisco, California 94105, and any such proposed business must constitute a proper matter for stockholder action.

To be timely, a stockholder's notice shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred and twentieth (120th) day and not later than the close of business on the ninetieth (90th) day prior to the first anniversary of the preceding year's annual meeting of stockholders; provided, however, that in the event that no annual meeting was held in the preceding year or the date of the annual meeting is advanced more than thirty (30) days prior to or delayed more than seventy (70) days after the anniversary of the preceding year's annual meeting, then to be timely, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred and twentieth (120th) day prior to the date of such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to the date of such annual meeting or, if the first public announcement of the date of such annual meeting is less than one hundred (100) days prior to the date of such annual meeting, the tenth (10th) day following the day on which public announcement of the date of such annual meeting is first made by the Corporation.

In no event shall any adjournment, recess, or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder's notice as described above.

Section 5.2 — Advance Notice — Required Information.

(a) Director Nominations. To be in proper written form, a stockholder's notice to the Secretary with respect to any nomination of a person or persons for election to the Board of Directors must set forth or be accompanied by the following:

(i) as to each person whom the stockholder proposes to nominate for election as a director: (A) the name, age, business address, and residence address of such person; (B) the principal occupation or employment of such person; (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such person; (D) any other information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder (including such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (E) a completed written questionnaire with respect to the background, qualifications, and independence of the proposed nominee (which questionnaire shall be provided by the Secretary upon written request); and (F) a written representation and agreement, in the form provided by the Secretary upon written request, that such person (1) 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 that has not been disclosed to the Corporation, (2) 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 in connection with service or action as a director that has not been disclosed to the Corporation, and (3) will comply with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading, and other policies and guidelines of the Corporation applicable to directors.

(b) Other Business Proposals. To be in proper written form, a stockholder's notice to the Secretary with respect to any business other than a nomination of a person or persons for election to the Board of Directors must set forth or be accompanied by:

(i) a brief description of the business desired to be brought before the annual meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), and the reasons for conducting such business at the annual meeting;

(ii) any material interest in such business of the stockholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is made; and

(iii) a description of all agreements, arrangements, and understandings between such stockholder and the beneficial owner, if any, and any other person or persons (including their names) in connection with the proposal of such business by such stockholder.

(c) Information Regarding the Proposing Stockholder. As to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, the stockholder's notice must also set forth:

(i) the name and address of such stockholder, as they appear on the Corporation's books, and of such beneficial owner, if any;

(ii) the class or series and number of shares of capital stock of the Corporation which are, directly or indirectly, owned beneficially and of record by such stockholder and such beneficial owner;

(iii) a description of any derivative positions held or beneficially held by the stockholder and by any beneficial owner, any hedging or other transaction or series of transactions that has been entered into by or on behalf of such stockholder or beneficial owner with respect to the Corporation's securities, any short interest in any security of the Corporation held by such stockholder or beneficial owner, and any other arrangement, agreement, or understanding (including any rights to dividends, votes, or other economic benefits derived from any security of the Corporation) the effect or intent of which is to mitigate loss to, manage risk of, or benefit from changes in the price of, any securities of the Corporation, or to increase or decrease the voting power of such stockholder or beneficial owner with respect to shares of the Corporation;

(iv) a description of all agreements, arrangements, and understandings between such stockholder and beneficial owner, if any, and any other person or persons (including their names) in connection with the nomination(s) or the proposal of business;

(v) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination; and

(vi) any other information relating to such stockholder and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, or any other information reasonably requested by the Corporation 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.

A stockholder providing notice of any nomination or other business proposed to be brought before a meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for determining the stockholders entitled to receive notice of the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof. Such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for determining the stockholders entitled to receive notice of the meeting (in the case of the update and supplement required to be made as of the record date), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).

Section 5.3 — Proxy Access.

(a) Eligibility. Whenever the Board of Directors solicits proxies with respect to the election of directors at an annual meeting of stockholders, subject to the provisions of this Section 5.3, the Corporation shall include in its proxy statement for such annual meeting, in addition to any persons nominated for election by or at the direction of the Board of Directors (or any committee thereof), the name, together with the Required Information (as defined below), of any person nominated for election to the Board of Directors by an Eligible Stockholder (as defined below) pursuant to and in compliance with this Section 5.3 (each, a "Stockholder Nominee").

For purposes of this Section 5.3, an "Eligible Stockholder" is a stockholder, or a group of no more than twenty (20) stockholders, that has owned (as defined below) continuously for at least three (3) years as of the date the notice required under this Section 5.3 is received by the Corporation shares of common stock of the Corporation representing at least three percent (3%) of the outstanding shares of common stock of the Corporation entitled to vote in the election of directors. For purposes of this Section 5.3, an Eligible Stockholder shall be deemed to "own" only those outstanding shares of common stock of the Corporation as to which the stockholder 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 from and the 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 stockholder or any of its affiliates in any transaction that has not been settled or closed, (B) borrowed by such stockholder or any of its affiliates for any purpose or purchased by such stockholder or any of its affiliates pursuant to an agreement to resell, or (C) subject to any option, warrant, forward contract, swap, contract of sale, or other derivative or similar agreement entered into by such stockholder 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 capital stock of the Corporation, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of reducing in any manner, to any extent or at any time in the future, such stockholder's or any of its affiliates' full right to vote or direct the voting of any such shares, and/or hedging, offsetting, or altering to any degree gain or loss arising from the full economic ownership of such shares by such stockholder or any of its affiliates.

(b) Number of Proxy Access Nominees. The maximum number of Stockholder Nominees that may be included in the Corporation's proxy materials pursuant to this Section 5.3 shall not exceed the greater of (i) two (2) or (ii) twenty percent (20%) of the total number of directors then in office as of the last day on which a notice may be delivered pursuant to this Section 5.3, rounded down to the nearest whole number. Any Stockholder Nominee who is subsequently withdrawn or whom the Board of Directors determines to include in the Corporation's proxy materials as a Board nominee shall be counted against the maximum number of Stockholder Nominees.

(c) Notice Deadline. To be timely, an Eligible Stockholder's notice must be delivered to the Secretary at the principal executive offices of the Corporation not earlier than one hundred and fifty (150) days and not later than one hundred and twenty (120) days before the anniversary of the date the Corporation first mailed or made available its proxy statement for the prior year's annual meeting of stockholders. In no event shall any adjournment, recess, or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of notice under this Section 5.3.

(d) Required Information. An Eligible Stockholder's notice must set forth or be accompanied by the following (the "Required Information"):

(i) one or more written statements from the record holder(s) 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 the date the notice is provided, the Eligible Stockholder owns, and has owned continuously for at least three (3) years, the required number of shares, and the Eligible Stockholder's agreement to provide, within five (5) business days after the record date for the annual meeting, written statements from the record holder(s) and intermediaries verifying the Eligible Stockholder's continuous ownership of the required number of shares through the record date;

(ii) a copy of the Schedule 14N that has been or will be filed with the Securities and Exchange Commission as required by Rule 14a-18 under the Exchange Act;

(iii) the information, representations, and agreements required by Section 5.2(a) with respect to each Stockholder Nominee, as if such Stockholder Nominee were a nominee of a stockholder under Section 5.2;

(iv) a written representation that the Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder) intends to continue to hold the required number of shares through the date of the annual meeting;

(v) a written consent of each Stockholder Nominee to being named in the Corporation's proxy statement and form of proxy and to serving as a director if elected;

(vi) a written agreement of each Stockholder Nominee that, if elected, such nominee will comply with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading, and other policies and guidelines of the Corporation applicable to directors; and

(vii) the written consent of the Eligible Stockholder (and each member of any group of stockholders that together is an Eligible Stockholder) to the public disclosure of the information provided to the Corporation pursuant to this Section 5.3.

(e) Exclusions and Limitations. The Corporation shall not be required to include a Stockholder Nominee in its proxy materials pursuant to this Section 5.3 if:

(i) the Stockholder Nominee would not be independent under the listing standards of the Nasdaq Global Select Market and any applicable rules of the Securities and Exchange Commission, or the Stockholder Nominee's service as a member of the Board of Directors would otherwise violate or cause the Corporation to be in violation of these Bylaws, the Certificate of Incorporation, the listing standards of the Nasdaq Global Select Market, or any applicable law, rule, or regulation;

(ii) the Stockholder Nominee is or has been, within the past three (3) years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended;

(iii) the Stockholder Nominee 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 (10) years;

(iv) the Stockholder Nominee is or becomes a nominee of any other stockholder for the same annual meeting of stockholders; or

(v) the Corporation has received a notice (whether or not subsequently withdrawn) pursuant to Section 5.1 of these Bylaws that a stockholder intends to nominate a candidate for director at the same annual meeting.

The Corporation may require each Stockholder Nominee to submit such additional information as the Corporation may reasonably request to determine the eligibility of such Stockholder Nominee to serve as an independent director of the Corporation.

Section 5.4 — Special Meetings — Nominations.

Only such business as shall have been brought before a special meeting pursuant to the Corporation's notice of meeting shall be conducted at such special meeting. Nominations of persons for election to the Board of Directors at a special meeting of the stockholders at which directors are to be elected pursuant to the Corporation's notice of meeting may be made only by or at the direction of the Board of Directors or any committee thereof, unless otherwise required by the Certificate of Incorporation.

Section 5.5 — General Provisions for Advance Notice.

Only such persons who are nominated in accordance with the procedures set forth in this Article V shall be eligible to be elected as directors, and only such business as shall have been brought before a meeting of the stockholders in accordance with the procedures set forth in this Article V shall be conducted at such meeting. The chairperson of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Article V (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies or votes in support of such stockholder's nominee or proposal in compliance with such stockholder's representation as required by Section 5.2 of these Bylaws) and, if any proposed nomination or business was not in compliance with this Article V, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation.

Notwithstanding anything in these Bylaws to the contrary, nothing in this Article V shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act. Compliance with Rule 14a-8 shall be deemed to satisfy the notice requirements of this Article V with respect to proposals submitted pursuant to Rule 14a-8 (but not with respect to director nominations).

ARTICLE VI — STOCK

Section 6.1 — Stock Certificates; Uncertificated Shares.

The shares of stock of the Corporation may be represented by certificates or may be uncertificated, as determined by the Board of Directors. The Board of Directors may provide by resolution that some or all of any or all classes or series of the Corporation's stock shall be uncertificated shares.

AMENDED AND RESTATED BYLAWS
OF
LUMOS ANALYTICS INC.
(a Delaware corporation)
Adopted Effective as of __, 2022
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PREAMBLE
These Amended and Restated Bylaws (these "Bylaws") of Lumos Analytics Inc., a Delaware corporation (the "Corporation"), are adopted effective as of __, 2022 (the "Effective Date"), being the date of the closing of the Corporation's initial public offering of Class A Common Stock (the "IPO").
These Bylaws amend and restate in their entirety the bylaws of the Corporation previously in effect. In the event of any conflict between the provisions of these Bylaws and the provisions of the Amended and Restated Certificate of Incorporation of the Corporation (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Certificate of Incorporation") filed with the Secretary of State of the State of Delaware, the Certificate of Incorporation shall control. All references herein to the Certificate of Incorporation shall mean the Certificate of Incorporation as in effect from time to time.
ARTICLE I — OFFICES
Section 1.1 — Registered Office.
The registered office of the Corporation in the State of Delaware shall be located at Capitol Registered Agents LLC, 850 New Burton Road, Suite 201, Dover, Delaware 19904, and the name of the Corporation's registered agent at such address shall be Capitol Registered Agents LLC. The registered office and registered agent of the Corporation may be changed from time to time by resolution of the Board of Directors of the Corporation (the "Board of Directors" or the "Board") in the manner provided by the Delaware General Corporation Law (the "DGCL").
Section 1.2 — Principal Office.
The principal executive office of the Corporation shall be located at 450 Folsom Street, Suite 1200, San Francisco, California 94105. The Board of Directors may change the location of the principal executive office of the Corporation from time to time as it deems advisable, and shall give notice of any such change to the stockholders of the Corporation in the manner required by applicable law.
Section 1.3 — Other Offices.
The Corporation may have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or as the business of the Corporation may require. Without limiting the generality of the foregoing, the Corporation is qualified to do business in the States of California, New York, Texas, and Illinois, and may maintain offices in each such jurisdiction as the Board of Directors determines to be necessary or appropriate in furtherance of the Corporation's business.
ARTICLE II — MEETINGS OF STOCKHOLDERS
Section 2.1 — Annual Meetings.
An annual meeting of the stockholders of the Corporation shall be held on such date, at such time, and at such place (if any), within or without the State of Delaware, or by means of remote communication, as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. At each annual meeting, the stockholders shall elect directors to succeed those directors whose terms expire at such meeting and shall transact such other business as may properly be brought before the meeting in accordance with these Bylaws. The Board of Directors may postpone, reschedule, or cancel any previously scheduled annual meeting of stockholders.
Section 2.2 — Special Meetings.
Special meetings of the stockholders of the Corporation may be called at any time only by (a) the Chairperson of the Board of Directors, (b) the Chief Executive Officer of the Corporation, or (c) the Board of Directors pursuant to a resolution adopted by a majority of the total number of directors then in office. Stockholders of the Corporation shall not have the right to call or cause the calling of a special meeting of the stockholders of the Corporation. This limitation on the ability of stockholders to call a special meeting is consistent with the Corporation's governance structure, including the dual-class capital structure in which shares of Class B Common Stock carry ten (10) votes per share.
Business transacted at any special meeting of the stockholders shall be limited to the matters stated in the notice of the meeting as provided in Section 2.3 of these Bylaws. The Board of Directors may postpone, reschedule, or cancel any previously scheduled special meeting of stockholders.
Section 2.3 — Notice of Meetings.
Written notice of each annual and special meeting of the stockholders of the Corporation shall be given to each stockholder of record entitled to vote at such meeting. The notice shall state the date, time, and place (if any) of the meeting, and, if the meeting is to be held by means of remote communication, the means of remote communication by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting. In the case of a special meeting, the notice shall also state the purpose or purposes for which the meeting has been called.
Unless otherwise required by law or the Certificate of Incorporation, written notice of each meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting. Notice may be given personally, by mail (first class, postage prepaid), or by electronic transmission in accordance with Section 232 of the DGCL. If mailed, notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder's address as it appears on the records of the Corporation. If given by electronic transmission, notice shall be deemed given at the time specified in Section 232 of the DGCL.
A written waiver of notice signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a stockholder at a meeting shall constitute a waiver of notice of such meeting, except when the stockholder attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business at the meeting on the ground that the meeting was not lawfully called or convened.
Section 2.4 — Record Date.
In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders, or any adjournment thereof, or to express consent to or dissent from corporate action in writing without a meeting (to the extent permitted), or entitled to receive payment of any dividend or other distribution or allotment of any rights, or 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 by the Board of Directors. The record date for any such purpose shall not be more than sixty (60) nor less than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior to any other action requiring determination of stockholders.
If no record date is fixed by the Board of Directors: (a) 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; and (b) the record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.
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 determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for the determination of stockholders entitled to vote at the adjourned meeting.
Section 2.5 — Quorum.
The holders of a majority of the voting power of the outstanding shares of stock of the Corporation entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. For purposes of determining the presence of a quorum, the aggregate voting power of all outstanding shares shall be calculated with reference to the voting rights of each class of stock as set forth in the Certificate of Incorporation, including shares of Class A Common Stock (one (1) vote per share) and shares of Class B Common Stock (ten (10) votes per share).
If a quorum shall not be present or represented at any meeting of the stockholders, the chairperson of the meeting or the holders of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented; provided, however, that if the adjournment is for more than thirty (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 for stockholders entitled to vote is fixed for the adjourned meeting, the Board of Directors shall fix a new record date for notice of such adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting. At any such adjourned meeting at which a quorum shall be present or represented, any business may be transacted that might have been transacted at the meeting as originally called.
Section 2.6 — Voting.
Unless otherwise required by law, the Certificate of Incorporation, or these Bylaws:
(a) Each holder of shares of Class A Common Stock shall be entitled to one (1) vote per share of Class A Common Stock held of record by such holder on each matter properly submitted to a vote of the stockholders.
(b) Each holder of shares of Class B Common Stock shall be entitled to ten (10) votes per share of Class B Common Stock held of record by such holder on each matter properly submitted to a vote of the stockholders.
All references herein to the voting rights of any class or series of stock are subject in all respects to the Certificate of Incorporation, which shall constitute the definitive statement of the voting rights attached to each class and series of the Corporation's capital stock.
Except as otherwise required by law, the Certificate of Incorporation, or these Bylaws, all matters other than the election of directors shall be decided by the affirmative vote of the holders of a majority of the voting power of the shares present in person or represented by proxy at the meeting and entitled to vote on the matter. The election of directors shall be governed by Section 3.4 of these Bylaws.
Section 2.7 — Proxies.
Every stockholder entitled to vote at a meeting of the stockholders, or to express consent or dissent to corporate action without a meeting (to the extent permitted), may authorize another person or persons to act for such stockholder by proxy. Such authorization may be granted by an instrument in writing or by electronic transmission in the manner permitted by Section 212 of the DGCL.
No proxy shall be voted or acted upon after three (3) years from the date of its execution, unless the proxy provides for a longer period. A duly executed 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. Each proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting at which such proxy is to be exercised.
Section 2.8 — Stockholder Action by Written Consent.
Following the IPO Effective Date, no action required or permitted to be taken at any annual or special meeting of the stockholders of the Corporation may be taken without a meeting, without prior notice, and without a vote, by written consent or electronic consent or otherwise. This prohibition on action by written consent of stockholders shall be subject to and governed by the provisions of the Certificate of Incorporation, which shall control in the event of any conflict with this Section 2.8.
Section 2.9 — Organization and Conduct of Meetings.
The Chairperson of the Board of Directors shall preside at all meetings of the stockholders. In the absence of the Chairperson of the Board, the Chief Executive Officer of the Corporation shall preside at such meetings. In the absence of both the Chairperson of the Board and the Chief Executive Officer, a person appointed by the Board of Directors shall preside at such meetings. The Secretary of the Corporation shall act as secretary of each meeting of the stockholders. In the absence of the Secretary, an assistant secretary of the Corporation, or if no assistant secretary is present, a person appointed by the chairperson of the meeting, shall act as secretary of the meeting.
The chairperson of any meeting of the stockholders shall have the authority to establish rules for the conduct of the meeting, including, without limitation, rules regarding: (a) the order of business; (b) the time allotted to each speaker and the procedures governing remarks by stockholders and other persons; (c) the maintenance of order and the safety of those attending; (d) restrictions on entry to the meeting after the time fixed for commencement thereof; (e) limitations on attendance at or participation in the meeting to stockholders of record, their duly authorized and constituted proxies, and such other persons as the chairperson of the meeting shall determine; and (f) the circumstances under which any person may make a motion or second a motion. The chairperson of the meeting shall also determine when the polls shall be opened and closed for any given matter to be voted upon. The date and time of the opening and closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting.
Section 2.10 — Inspectors of Election.
Before any meeting of stockholders, the Board of Directors may appoint one or more inspectors of election to act at the meeting or at any adjournment thereof. If no inspectors of election are so appointed, the chairperson of the meeting may, and upon the request of any stockholder or the stockholder's proxy shall, appoint one or more inspectors of election to act at the meeting. Each inspector, before entering upon the discharge of the duties of inspector, shall take and sign an oath to faithfully execute the duties of inspector with strict impartiality and according to the best of such inspector's ability. The inspectors of election shall have the duties prescribed by Section 231 of the DGCL, including: (a) ascertaining the number of shares outstanding and the voting power of each; (b) determining the shares represented at a meeting and the validity of proxies and ballots; (c) counting all votes and ballots; (d) determining and retaining for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and (e) certifying their determination of the number of shares represented at the meeting and their count of all votes and ballots.
Section 2.11 — Stockholder List.
The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make available, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date), arranged in alphabetical order and showing the address of each stockholder and the number and class of shares registered in the name of each stockholder.
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 (10) days prior to the meeting: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting; or (b) during ordinary business hours at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be examined by any stockholder who is present.
ARTICLE III — BOARD OF DIRECTORS
Section 3.1 — General Powers.
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as otherwise provided by the DGCL or the Certificate of Incorporation. In addition to the powers and authority expressly conferred upon them by statute, by the Certificate of Incorporation, or by these Bylaws, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject to the provisions of the DGCL, the Certificate of Incorporation, and these Bylaws.
Directors need not be stockholders of the Corporation or residents of the State of Delaware.
Section 3.2 — Number of Directors.
The total number of directors constituting the entire Board of Directors shall be fixed from time to time exclusively by resolution adopted by a majority of the total number of directors then in office. The initial number of directors constituting the Board of Directors following the IPO shall be seven (7). No reduction in the authorized number of directors shall have the effect of removing any director before such director's term of office expires.
Section 3.3 — Classification of the Board.
The Board of Directors shall be divided into three (3) classes, designated as Class I, Class II, and Class III, as nearly equal in number as possible. The Board of Directors is authorized to assign members of the Board already in office to such classes at the time the classification becomes effective. Each director shall serve for a term ending on the date of the third annual meeting of stockholders following the annual meeting at which such director was elected; provided, however, that each initial director in Class I shall serve for a term expiring at the Corporation's first annual meeting of stockholders following the IPO; each initial director in Class II shall serve for a term expiring at the Corporation's second annual meeting of stockholders following the IPO; and each initial director in Class III shall serve for a term expiring at the Corporation's third annual meeting of stockholders following the IPO.
At each annual meeting of the stockholders, successors to the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the third succeeding annual meeting of stockholders. Each director shall hold office until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal from office.
If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any additional director of any class elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case shall a decrease in the number of directors shorten the term of any incumbent director.
Section 3.4 — Election of Directors.
Directors shall be elected at each annual meeting of the stockholders by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote on the election of directors. For the avoidance of doubt, the persons receiving the greatest number of votes of the stockholders, up to the number of directors to be elected, shall be deemed elected. There shall be no cumulative voting in the election of directors.
Section 3.5 — Vacancies and Newly Created Directorships.
Subject to the rights of the holders of any series of Preferred Stock then outstanding, vacancies on the Board of Directors resulting from death, resignation, disqualification, removal, or any other cause, and newly created directorships resulting from any increase in the authorized number of directors, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by a sole remaining director. Stockholders shall not have any right to fill vacancies on the Board of Directors. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall have the same remaining term as that of the director's predecessor. Any director elected to fill a vacancy resulting from an increase in the authorized number of directors shall serve for the remainder of the full term of the class of directors in which the new directorship was created and until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal.
Section 3.6 — Removal of Directors.
Subject to the rights of the holders of any series of Preferred Stock then outstanding, any director or the entire Board of Directors may be removed from office only for cause and only by the affirmative vote of the holders of at least sixty-six and two-thirds percent (66⅔%) of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class. For purposes of this Section 3.6, "cause" shall mean (a) a final, non-appealable conviction of a felony involving moral turpitude, (b) willful misconduct that is materially and demonstrably injurious to the Corporation, or (c) a final, non-appealable judicial determination that such director breached his or her duty of loyalty to the Corporation or its stockholders.
Section 3.7 — Resignation of Directors.
Any director may resign at any time by giving notice in writing or by electronic transmission to the Chairperson of the Board of Directors, the Chief Executive Officer, or the Secretary of the Corporation. A resignation shall be effective upon receipt thereof or at such later time as shall be specified in the notice. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. If a resignation is made effective at a later date and the Board of Directors accepts such future effective date, the Board of Directors may fill the pending vacancy before the effective date if the Board provides that the successor director does not take office until the effective date of the resignation.
Section 3.8 — Compensation of Directors.
Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated annual retainer. Members of special or standing committees may be allowed compensation for attending committee meetings. No such compensation shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. The Compensation Committee of the Board of Directors, or such other committee as the Board may designate, shall periodically review and make recommendations to the Board regarding the form and amount of compensation for non-employee directors.
Section 3.9 — Regular Meetings.
Regular meetings of the Board of Directors may be held at such times, dates, and places (within or without the State of Delaware) as shall be determined from time to time by resolution of the Board of Directors. Notice of regular meetings need not be given if the time and place of such meetings have been fixed by the Board of Directors; provided, however, that if the Board of Directors changes the date, time, or place of a regular meeting, notice of such change shall be given to each director in the manner described in Section 3.10 of these Bylaws. A meeting of the Board of Directors may be held without notice immediately after the annual meeting of the stockholders at the same place at which such meeting is held.
Section 3.10 — Special Meetings.
Special meetings of the Board of Directors may be called by the Chairperson of the Board of Directors, the Chief Executive Officer, or a majority of the total number of directors then in office. Notice of any special meeting of the Board of Directors shall be given to each director at least twenty-four (24) hours before the meeting if given personally, by telephone, or by electronic transmission (including electronic mail), or at least forty-eight (48) hours before the meeting if given by mail (first class, postage prepaid). The notice need not specify the purpose or purposes of the special meeting of the Board of Directors, and the transaction of any business at such special meeting shall not be invalidated by the failure of the notice to specify such purpose or purposes.
Section 3.11 — Quorum and Voting.
At all meetings of the Board of Directors, a majority of the total number of directors then in office shall constitute a quorum for the transaction of business. The act of the Board of Directors shall require the affirmative vote of a majority of the directors present at a meeting at which a quorum is present. If a quorum shall not be present at any meeting of the Board of Directors, a majority of the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. A director who is present at a meeting of the Board of Directors at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless such director's dissent shall be entered in the minutes of the meeting, or unless the director shall file a written dissent to such action with the person acting as secretary of the meeting before the adjournment thereof, or shall forward such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting.
Section 3.12 — Action by Written Consent of Directors.
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 members of the Board of Directors or such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors or such committee. Such consent shall have the same force and effect as a unanimous vote of the Board of Directors or committee, as applicable, and may be stated as such in any certificate or document filed with the Secretary of State of the State of Delaware or delivered to any third party.
Section 3.13 — Meetings by Telephone or Other Communications Equipment.
Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 3.13 shall constitute presence in person at the meeting.
Section 3.14 — Committees of the Board.
The Board of Directors may, by resolution passed by a majority of the total number of directors then in office, designate one or more committees of the Board of Directors, each consisting of one or more 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. Any committee, to the extent permitted by law and to the extent provided in the resolution of the Board of Directors establishing such committee, 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, except that no committee shall have the power or authority to: (a) approve, adopt, or recommend to the stockholders any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval; or (b) adopt, amend, or repeal any bylaw of the Corporation.
Without limiting the generality of the foregoing, the Board of Directors shall establish and maintain the following standing committees in compliance with applicable Nasdaq listing standards and the rules and regulations of the Securities and Exchange Commission:
(a) Audit Committee. The Audit Committee shall be comprised of at least three (3) independent directors who each satisfy the independence requirements of Nasdaq Listing Rule 5605(c)(2) and Rule 10A-3 under the Securities Exchange Act of 1934, as amended. At least one member of the Audit Committee shall be an "audit committee financial expert" as defined under Item 407(d)(5) of Regulation S-K. The Audit Committee shall have the duties and responsibilities set forth in its charter, as adopted and amended from time to time by the Board of Directors.
(b) Compensation Committee. The Compensation Committee shall be comprised of at least two (2) independent directors who each satisfy the independence requirements of Nasdaq Listing Rule 5605(d)(2). The Compensation Committee shall have the duties and responsibilities set forth in its charter, as adopted and amended from time to time by the Board of Directors.
(c) Nominating and Corporate Governance Committee. The Nominating and Corporate Governance Committee shall be comprised of at least two (2) independent directors who each satisfy the independence requirements of Nasdaq Listing Rule 5605(a)(2). The Nominating and Corporate Governance Committee shall have the duties and responsibilities set forth in its charter, as adopted and amended from time to time by the Board of Directors.
Each committee shall keep regular minutes of its proceedings and report the same to the Board of Directors as requested. Members of any committee may be removed by the Board of Directors at any time, with or without cause, by the affirmative vote of a majority of the total number of directors then in office.
Section 3.15 — Reliance on Records and Reports.
A member of the Board of Directors, or a member of any committee designated by the Board of Directors, shall, in the performance of such person's duties, be fully protected in relying in good faith upon the records of the Corporation and upon such information, opinions, reports, or statements presented to the Corporation by any of the Corporation's officers or employees, or committees of the Board of Directors, or by any other person as to matters the director reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation, in accordance with Section 141(e) of the DGCL.
ARTICLE IV — OFFICERS
Section 4.1 — Officers Generally.
The officers of the Corporation shall include a Chief Executive Officer, a President, a Secretary, and a Chief Financial Officer, each of whom shall be appointed by the Board of Directors. The Corporation may also have, at the discretion of the Board of Directors, a Chairperson of the Board, one or more Vice Presidents (including Executive Vice Presidents and Senior Vice Presidents), a Treasurer, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers as may from time to time be appointed by the Board of Directors. Any two (2) or more offices may be held by the same person; provided, however, that the Secretary and the Chief Executive Officer shall not be the same person. Officers need not be stockholders of the Corporation or residents of the State of Delaware.
Section 4.2 — Appointment and Term.
All officers of the Corporation shall be appointed by the Board of Directors. Each officer shall hold office until a successor shall have been duly appointed and shall have qualified, or until such officer's earlier death, resignation, or removal. The appointment of an officer shall not of itself create contractual rights in favor of such officer.
Section 4.3 — Removal.
Any officer of the Corporation may be removed at any time, with or without cause, by the Board of Directors. Such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation, but the appointment of an officer shall not of itself create contractual rights.
Section 4.4 — Resignation.
Any officer of the Corporation may resign at any time by giving written notice to the Board of Directors, the Chairperson of the Board, the Chief Executive Officer, or the Secretary of the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date or an effective date determined upon the happening of an event or events. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 4.5 — Chief Executive Officer.
The Chief Executive Officer shall have general supervision and control of the business and affairs of the Corporation, subject to the direction and oversight of the Board of Directors. In the absence of the Chairperson of the Board, the Chief Executive Officer shall preside at all meetings of the stockholders. The Chief Executive Officer shall have the power, on behalf of the Corporation, to execute bonds, mortgages, contracts, agreements, and other instruments, as authorized by the Board of Directors. The Chief Executive Officer shall perform all duties incident to the office of Chief Executive Officer and such other duties as may be prescribed by the Board of Directors from time to time. The Chief Executive Officer shall also have the authority to appoint and remove subordinate officers, employees, and agents of the Corporation, subject to the authority of the Board of Directors to appoint and remove officers.
Section 4.6 — President.
The President shall have such duties and powers as may from time to time be assigned by the Board of Directors or the Chief Executive Officer. In the absence of the Chief Executive Officer, or in the event of the Chief Executive Officer's inability or refusal to act, the President shall perform the duties of the Chief Executive Officer and, when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer.
Section 4.7 — Chief Financial Officer.
The Chief Financial Officer shall have custody of the corporate funds and securities of the Corporation and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation. The Chief Financial Officer 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 for that purpose by the Board of Directors or pursuant to authority delegated by the Board. The Chief Financial Officer 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 Board of Directors, at its regular meetings or when the Board of Directors so requires, an account of all such officer's transactions as Chief Financial Officer and of the financial condition of the Corporation. The Chief Financial Officer shall perform all duties incident to the office of Chief Financial Officer and such other duties as the Board of Directors or the Chief Executive Officer may from time to time prescribe.
Section 4.8 — Secretary.
The Secretary shall attend all meetings of the Board of Directors and all meetings of the stockholders and record all the proceedings thereat in a book or books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors in accordance with these Bylaws and as required by law. The Secretary shall be the custodian of the corporate seal (if any) and the corporate records of the Corporation and shall see that the corporate seal is affixed to all documents the execution of which on behalf of the Corporation under its seal is duly authorized. The Secretary shall maintain or cause to be maintained the stock ledger and stockholder list of the Corporation and shall have the authority to certify the bylaws, resolutions of the Board of Directors and stockholders, and other documents of the Corporation as true and correct copies thereof. The Secretary shall perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned by the Board of Directors or the Chief Executive Officer.
Section 4.9 — Other Officers.
Such other officers as the Board of Directors may choose shall perform such duties and have such powers as may be assigned to them from time to time by the Board of Directors or by the officer to whom they report. The Board of Directors may delegate to any other officer of the Corporation the power to choose subordinate officers and to prescribe the respective duties and powers of such subordinate officers.
Section 4.10 — Compensation of Officers.
The compensation of all officers of the Corporation shall be fixed by the Board of Directors or, to the extent delegated by the Board, by the Compensation Committee of the Board of Directors. No officer shall be prevented from receiving such compensation by reason of the fact that the officer is also a director of the Corporation.
ARTICLE V — ADVANCE NOTICE OF STOCKHOLDER NOMINATIONS AND OTHER BUSINESS
Section 5.1 — Annual Meetings — Nominations and Other Business.
Nominations of persons for election to the Board of Directors and the proposal of other business to be considered by the stockholders at an annual meeting of the stockholders may be made only:
(a) pursuant to the Corporation's notice of the meeting (or any supplement thereto) delivered by or at the direction of the Board of Directors or any duly authorized committee thereof;
(b) by or at the direction of the Board of Directors or a committee appointed by the Board of Directors; or
(c) by a stockholder of the Corporation who (i) was a stockholder of record of the Corporation at the time the notice provided for in this Section 5.1 is delivered to the Secretary of the Corporation, (ii) is a stockholder of record at the time of the annual meeting, (iii) is entitled to vote at the annual meeting, and (iv) complies with the notice procedures set forth in this Section 5.1 and Section 5.2 of these Bylaws, as to such stockholder's nominations or other business; or
(d) by an Eligible Stockholder (as defined in Section 5.3) in compliance with the proxy access provisions of Section 5.3 of these Bylaws, but only as to nominations for directors.
For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of the foregoing paragraph, the stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation at the principal executive offices of the Corporation, 450 Folsom Street, Suite 1200, San Francisco, California 94105, and any such proposed business must constitute a proper matter for stockholder action.
To be timely, a stockholder's notice shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the one hundred and twentieth (120th) day and not later than the close of business on the ninetieth (90th) day prior to the first anniversary of the preceding year's annual meeting of stockholders; provided, however, that in the event that no annual meeting was held in the preceding year or the date of the annual meeting is advanced more than thirty (30) days prior to or delayed more than seventy (70) days after the anniversary of the preceding year's annual meeting, then to be timely, notice by the stockholder must be so delivered not earlier than the close of business on the one hundred and twentieth (120th) day prior to the date of such annual meeting and not later than the close of business on the later of the ninetieth (90th) day prior to the date of such annual meeting or, if the first public announcement of the date of such annual meeting is less than one hundred (100) days prior to the date of such annual meeting, the tenth (10th) day following the day on which public announcement of the date of such annual meeting is first made by the Corporation.
In no event shall any adjournment, recess, or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder's notice as described above.
Section 5.2 — Advance Notice — Required Information.
(a) Director Nominations. To be in proper written form, a stockholder's notice to the Secretary with respect to any nomination of a person or persons for election to the Board of Directors must set forth or be accompanied by the following:
(i) as to each person whom the stockholder proposes to nominate for election as a director: (A) the name, age, business address, and residence address of such person; (B) the principal occupation or employment of such person; (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such person; (D) any other information relating to such person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and regulations promulgated thereunder (including such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected); (E) a completed written questionnaire with respect to the background, qualifications, and independence of the proposed nominee (which questionnaire shall be provided by the Secretary upon written request); and (F) a written representation and agreement, in the form provided by the Secretary upon written request, that such person (1) 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 that has not been disclosed to the Corporation, (2) 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 in connection with service or action as a director that has not been disclosed to the Corporation, and (3) will comply with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading, and other policies and guidelines of the Corporation applicable to directors.
(b) Other Business Proposals. To be in proper written form, a stockholder's notice to the Secretary with respect to any business other than a nomination of a person or persons for election to the Board of Directors must set forth or be accompanied by:
(i) a brief description of the business desired to be brought before the annual meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), and the reasons for conducting such business at the annual meeting;
(ii) any material interest in such business of the stockholder giving the notice and the beneficial owner, if any, on whose behalf the proposal is made; and
(iii) a description of all agreements, arrangements, and understandings between such stockholder and the beneficial owner, if any, and any other person or persons (including their names) in connection with the proposal of such business by such stockholder.
(c) Information Regarding the Proposing Stockholder. As to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, the stockholder's notice must also set forth:
(i) the name and address of such stockholder, as they appear on the Corporation's books, and of such beneficial owner, if any;
(ii) the class or series and number of shares of capital stock of the Corporation which are, directly or indirectly, owned beneficially and of record by such stockholder and such beneficial owner;
(iii) a description of any derivative positions held or beneficially held by the stockholder and by any beneficial owner, any hedging or other transaction or series of transactions that has been entered into by or on behalf of such stockholder or beneficial owner with respect to the Corporation's securities, any short interest in any security of the Corporation held by such stockholder or beneficial owner, and any other arrangement, agreement, or understanding (including any rights to dividends, votes, or other economic benefits derived from any security of the Corporation) the effect or intent of which is to mitigate loss to, manage risk of, or benefit from changes in the price of, any securities of the Corporation, or to increase or decrease the voting power of such stockholder or beneficial owner with respect to shares of the Corporation;
(iv) a description of all agreements, arrangements, and understandings between such stockholder and beneficial owner, if any, and any other person or persons (including their names) in connection with the nomination(s) or the proposal of business;
(v) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination; and
(vi) any other information relating to such stockholder and beneficial owner, if any, that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, or any other information reasonably requested by the Corporation 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.
A stockholder providing notice of any nomination or other business proposed to be brought before a meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice shall be true and correct as of the record date for determining the stockholders entitled to receive notice of the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment or postponement thereof. Such update and supplement shall be delivered to, or mailed and received by, the Secretary at the principal executive offices of the Corporation not later than five (5) business days after the record date for determining the stockholders entitled to receive notice of the meeting (in the case of the update and supplement required to be made as of the record date), and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement thereof).
Section 5.3 — Proxy Access.
(a) Eligibility. Whenever the Board of Directors solicits proxies with respect to the election of directors at an annual meeting of stockholders, subject to the provisions of this Section 5.3, the Corporation shall include in its proxy statement for such annual meeting, in addition to any persons nominated for election by or at the direction of the Board of Directors (or any committee thereof), the name, together with the Required Information (as defined below), of any person nominated for election to the Board of Directors by an Eligible Stockholder (as defined below) pursuant to and in compliance with this Section 5.3 (each, a "Stockholder Nominee").
For purposes of this Section 5.3, an "Eligible Stockholder" is a stockholder, or a group of no more than twenty (20) stockholders, that has owned (as defined below) continuously for at least three (3) years as of the date the notice required under this Section 5.3 is received by the Corporation shares of common stock of the Corporation representing at least three percent (3%) of the outstanding shares of common stock of the Corporation entitled to vote in the election of directors. For purposes of this Section 5.3, an Eligible Stockholder shall be deemed to "own" only those outstanding shares of common stock of the Corporation as to which the stockholder 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 from and the 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 stockholder or any of its affiliates in any transaction that has not been settled or closed, (B) borrowed by such stockholder or any of its affiliates for any purpose or purchased by such stockholder or any of its affiliates pursuant to an agreement to resell, or (C) subject to any option, warrant, forward contract, swap, contract of sale, or other derivative or similar agreement entered into by such stockholder 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 capital stock of the Corporation, in any such case which instrument or agreement has, or is intended to have, the purpose or effect of reducing in any manner, to any extent or at any time in the future, such stockholder's or any of its affiliates' full right to vote or direct the voting of any such shares, and/or hedging, offsetting, or altering to any degree gain or loss arising from the full economic ownership of such shares by such stockholder or any of its affiliates.
(b) Number of Proxy Access Nominees. The maximum number of Stockholder Nominees that may be included in the Corporation's proxy materials pursuant to this Section 5.3 shall not exceed the greater of (i) two (2) or (ii) twenty percent (20%) of the total number of directors then in office as of the last day on which a notice may be delivered pursuant to this Section 5.3, rounded down to the nearest whole number. Any Stockholder Nominee who is subsequently withdrawn or whom the Board of Directors determines to include in the Corporation's proxy materials as a Board nominee shall be counted against the maximum number of Stockholder Nominees.
(c) Notice Deadline. To be timely, an Eligible Stockholder's notice must be delivered to the Secretary at the principal executive offices of the Corporation not earlier than one hundred and fifty (150) days and not later than one hundred and twenty (120) days before the anniversary of the date the Corporation first mailed or made available its proxy statement for the prior year's annual meeting of stockholders. In no event shall any adjournment, recess, or postponement of an annual meeting or the public announcement thereof commence a new time period (or extend any time period) for the giving of notice under this Section 5.3.
(d) Required Information. An Eligible Stockholder's notice must set forth or be accompanied by the following (the "Required Information"):
(i) one or more written statements from the record holder(s) 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 the date the notice is provided, the Eligible Stockholder owns, and has owned continuously for at least three (3) years, the required number of shares, and the Eligible Stockholder's agreement to provide, within five (5) business days after the record date for the annual meeting, written statements from the record holder(s) and intermediaries verifying the Eligible Stockholder's continuous ownership of the required number of shares through the record date;
(ii) a copy of the Schedule 14N that has been or will be filed with the Securities and Exchange Commission as required by Rule 14a-18 under the Exchange Act;
(iii) the information, representations, and agreements required by Section 5.2(a) with respect to each Stockholder Nominee, as if such Stockholder Nominee were a nominee of a stockholder under Section 5.2;
(iv) a written representation that the Eligible Stockholder (including each member of any group of stockholders that together is an Eligible Stockholder) intends to continue to hold the required number of shares through the date of the annual meeting;
(v) a written consent of each Stockholder Nominee to being named in the Corporation's proxy statement and form of proxy and to serving as a director if elected;
(vi) a written agreement of each Stockholder Nominee that, if elected, such nominee will comply with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading, and other policies and guidelines of the Corporation applicable to directors; and
(vii) the written consent of the Eligible Stockholder (and each member of any group of stockholders that together is an Eligible Stockholder) to the public disclosure of the information provided to the Corporation pursuant to this Section 5.3.
(e) Exclusions and Limitations. The Corporation shall not be required to include a Stockholder Nominee in its proxy materials pursuant to this Section 5.3 if:
(i) the Stockholder Nominee would not be independent under the listing standards of the Nasdaq Global Select Market and any applicable rules of the Securities and Exchange Commission, or the Stockholder Nominee's service as a member of the Board of Directors would otherwise violate or cause the Corporation to be in violation of these Bylaws, the Certificate of Incorporation, the listing standards of the Nasdaq Global Select Market, or any applicable law, rule, or regulation;
(ii) the Stockholder Nominee is or has been, within the past three (3) years, an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, as amended;
(iii) the Stockholder Nominee 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 (10) years;
(iv) the Stockholder Nominee is or becomes a nominee of any other stockholder for the same annual meeting of stockholders; or
(v) the Corporation has received a notice (whether or not subsequently withdrawn) pursuant to Section 5.1 of these Bylaws that a stockholder intends to nominate a candidate for director at the same annual meeting.
The Corporation may require each Stockholder Nominee to submit such additional information as the Corporation may reasonably request to determine the eligibility of such Stockholder Nominee to serve as an independent director of the Corporation.
Section 5.4 — Special Meetings — Nominations.
Only such business as shall have been brought before a special meeting pursuant to the Corporation's notice of meeting shall be conducted at such special meeting. Nominations of persons for election to the Board of Directors at a special meeting of the stockholders at which directors are to be elected pursuant to the Corporation's notice of meeting may be made only by or at the direction of the Board of Directors or any committee thereof, unless otherwise required by the Certificate of Incorporation.
Section 5.5 — General Provisions for Advance Notice.
Only such persons who are nominated in accordance with the procedures set forth in this Article V shall be eligible to be elected as directors, and only such business as shall have been brought before a meeting of the stockholders in accordance with the procedures set forth in this Article V shall be conducted at such meeting. The chairperson of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Article V (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies or votes in support of such stockholder's nominee or proposal in compliance with such stockholder's representation as required by Section 5.2 of these Bylaws) and, if any proposed nomination or business was not in compliance with this Article V, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation.
Notwithstanding anything in these Bylaws to the contrary, nothing in this Article V shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act. Compliance with Rule 14a-8 shall be deemed to satisfy the notice requirements of this Article V with respect to proposals submitted pursuant to Rule 14a-8 (but not with respect to director nominations).
ARTICLE VI — STOCK
Section 6.1 — Stock Certificates; Uncertificated Shares.
The shares of stock of the Corporation may be represented by certificates or may be uncertificated, as determined by the Board of Directors. The Board of Directors may provide by resolution that some or all of any or all classes or series of the Corporation's stock shall be uncertificated shares.

AMENDED AND RESTATED BYLAWS

LUMOS ANALYTICS INC.

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