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AMENDED AND RESTATED BYLAWS

ARBOR HEALTH TECHNOLOGIES INC.

A Delaware Corporation

Adopted by the Board of Directors on February 8, 2024

Effective upon the closing of the Corporation's initial public offering of common stock

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RECITALS

These Amended and Restated Bylaws (these "Bylaws") of Arbor Health Technologies Inc., a Delaware corporation (the "Corporation"), are adopted by the Board of Directors of the Corporation (the "Board") on February 8, 2024, and shall become effective upon the closing of the Corporation's initial public offering of its common stock, par value $0.001 per share, registered under the Securities Act of 1933, as amended (the "IPO Effective Date").

These Bylaws amend and restate in their entirety the bylaws of the Corporation as previously in effect prior to the IPO Effective Date. All prior bylaws of the Corporation, as adopted or amended prior to the date hereof, are hereby superseded and replaced in their entirety by these Bylaws, which shall govern the internal affairs of the Corporation from and after the IPO Effective Date.

These Bylaws are adopted in connection with and subject to the Amended and Restated Certificate of Incorporation of the Corporation, as filed with the Secretary of State of the State of Delaware on the closing date of the Corporation's initial public offering (the "Certificate of Incorporation"). In the event of any inconsistency between the provisions of these Bylaws and the Certificate of Incorporation, the provisions of the Certificate of Incorporation shall control to the fullest extent permitted by law.

ARTICLE I — OFFICES

Section 1.1 — Registered Office.

The registered office of the Corporation in the State of Delaware shall be at the office of National Registered Agents of Delaware, Inc., 160 Greentree Drive, Suite 101, Dover, Delaware 19904, and the registered agent of the Corporation at such address shall be National Registered Agents of Delaware, Inc. The Board may, by resolution adopted at any regular or special meeting of the Board, change the registered office and registered agent of the Corporation from time to time in accordance with the provisions of the General Corporation Law of the State of Delaware (the "DGCL").

Section 1.2 — Principal Executive Office.

The principal executive office of the Corporation shall be located at 275 Kendall Avenue, Suite 1400, Cambridge, Massachusetts 02142, or at such other place as the Board may from time to time determine by resolution duly adopted at a regular or special meeting of the Board. The designation of the principal executive office may be changed by the Board without amendment to these Bylaws.

Section 1.3 — Other Offices.

The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board may from time to time determine or as the business and affairs of the Corporation may require. The establishment of any such office shall not require an amendment to these Bylaws.

ARTICLE II — MEETINGS OF STOCKHOLDERS

Section 2.1 — Place of Meetings.

Meetings of stockholders of the Corporation may be held at such place, if any, either within or without the State of Delaware, as shall be determined from time to time by the Board, the Chairman of the Board, or the Chief Executive Officer and as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. The Board may, in its sole discretion, determine that any meeting of stockholders shall not be held at any place but shall instead be held solely by means of remote communication in accordance with Section 211(a)(2) of the DGCL and such other provisions of the DGCL as may be applicable. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication, participate in a meeting of stockholders and be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (a) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (b) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (c) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.

Section 2.2 — Annual Meeting.

An annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held at such date, time, and place (if any) or by means of remote communication as may be designated by the Board from time to time. The Board shall have the authority to determine the date, time, and place (if any) of the annual meeting, and such determination shall be set forth in the notice of the meeting delivered in accordance with Section 2.4 of these Bylaws. At the annual meeting, directors shall be elected in accordance with Section 3.4 of these Bylaws, and only such other business shall be conducted as shall have been properly brought before the meeting in accordance with Section 2.12 of these Bylaws.

Section 2.3 — Special Meetings.

Special meetings of stockholders of the Corporation may be called at any time only by (a) the Board pursuant to a resolution adopted by a majority of the total number of directors then in office, (b) the Chairman of the Board, or (c) the Chief Executive Officer. The ability to call a special meeting of stockholders is vested exclusively in the foregoing persons, and stockholders of the Corporation shall not have the right to call or to require the calling of a special meeting of stockholders. This limitation on the right to call special meetings is consistent with the Certificate of Incorporation, which prohibits stockholder action by written consent and restricts the right to call special meetings as set forth herein. Only such business as is specified in the notice of a special meeting of stockholders given in accordance with Section 2.4 of these Bylaws may be brought before and conducted at such special meeting.

Section 2.4 — Notice of Meetings.

Written notice of each meeting of stockholders, whether annual or special, shall be given to each stockholder of record entitled to vote at the meeting. The notice shall state the place (if any), date, and time of the meeting, the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting), and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by the DGCL, the Certificate of Incorporation, or these Bylaws, notice shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting.

Notice may be delivered personally, by mail, or by electronic transmission (to the extent permitted by Section 232 of the DGCL) to each stockholder of record entitled to vote at the meeting, directed to the stockholder at such stockholder's address (or, in the case of electronic transmission, the electronic mail address, facsimile number, or other address for electronic transmission) as it appears on the records of the Corporation. If mailed, notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at the stockholder's address as it appears on the records of the Corporation. If notice is given by electronic transmission, such 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 given before or after the time of the meeting or event to which the notice relates, shall be deemed equivalent to notice. Attendance of a stockholder at a meeting shall constitute a waiver of notice of such meeting, except where the stockholder attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

Section 2.5 — Quorum.

Except as otherwise provided by the DGCL, the Certificate of Incorporation, or these Bylaws, the holders of a majority of the voting power of all of the shares of stock of the Corporation issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of stockholders for the transaction of business. Where a separate vote by a class or series is required, a majority of the voting power of the outstanding shares of such class or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter.

If a quorum is not present at any meeting of 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 at the meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At 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. 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 shall fix a new record date for notice of such adjourned meeting in accordance with Section 213(a) of the DGCL, 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.

No business may be transacted at an adjourned meeting other than business that might have been transacted at the meeting as originally noticed.

Section 2.6 — Voting.

Unless otherwise provided in the Certificate of Incorporation or required by the DGCL, each holder of shares of common stock of the Corporation, par value $0.001 per share, shall be entitled to one (1) vote per share on all matters submitted to a vote of stockholders. In the election of directors, directors shall be elected by a plurality of the votes cast by the holders of shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. All other matters brought before the meeting 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, except where the Certificate of Incorporation, these Bylaws, or the DGCL requires a different vote, in which case such express provision shall govern and control.

Without limiting the foregoing, the Certificate of Incorporation provides that certain matters, including the amendment, alteration, or repeal of these Bylaws by the stockholders, shall require the affirmative vote of the holders of at least sixty-six and two-thirds percent (66⅔%) of the voting power of the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class.

Section 2.7 — Proxies.

Each stockholder entitled to vote at a meeting of stockholders, or to express consent or dissent to corporate action in writing without a meeting (to the extent permitted), may authorize another person or persons to act for such stockholder by proxy. Such proxy must be in writing and signed by the stockholder or must be authorized by the stockholder by electronic transmission, as permitted under Section 212 of the DGCL. A proxy must be filed with the Secretary of the Corporation before or at the time of the meeting. No proxy shall be voted or acted upon after three (3) years from its date, 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. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy, or by filing another duly executed proxy bearing a later date, with the Secretary of the Corporation.

Section 2.8 — Conduct of Meetings.

The chairman of each meeting of stockholders shall be the Chairman of the Board, or in the absence of the Chairman of the Board, the Chief Executive Officer, or in the absence of both the Chairman of the Board and the Chief Executive Officer, a person designated by the Board. The Secretary of the Corporation shall act as secretary of each meeting of stockholders. In the absence of the Secretary of the Corporation, an Assistant Secretary shall act as secretary of the meeting, or in the absence of an Assistant Secretary, the chairperson of the meeting may appoint any person to act as secretary of the meeting.

The chairperson of the meeting shall have the authority and discretion to establish rules of conduct for the meeting, including, without limitation, rules regarding the time allotted to stockholders to speak, the order of business to be conducted at the meeting, the procedures for maintaining order at the meeting, and restrictions on entry to the meeting after the time fixed for the commencement thereof. The chairperson shall have the power to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed in accordance with these Bylaws, and if any proposed nomination or business is not in compliance with these Bylaws, to declare that such defective nomination or proposal shall be disregarded. The chairperson shall also have the power to adjourn the meeting from time to time.

The Board may, in its discretion, or as required by the DGCL, appoint one or more inspectors of election for any meeting of stockholders. Such inspectors shall perform such duties as may be required by the DGCL, including ascertaining the number of shares outstanding and the voting power of each, determining the shares represented at the meeting and the validity of proxies and ballots, counting all votes and ballots, and certifying the results of the vote.

Section 2.9 — No Stockholder Action by Written Consent.

No action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice, and without a vote, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. This provision is consistent with the Certificate of Incorporation, which eliminates the right of stockholders to act by written consent in lieu of a meeting.

Section 2.10 — Record Date.

In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, or entitled to vote at any meeting of stockholders, 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 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.

The record date for the determination of stockholders entitled to notice of or to vote at any meeting of stockholders shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. The record date for any other purpose shall not be more than sixty (60) days prior to such other action.

If no record date is fixed by the Board, (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 purpose other than notice of or voting at a meeting shall be at the close of business on the day on which the Board 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, unless the Board fixes a new record date for the determination of stockholders entitled to vote at the adjourned meeting, in which case the Board 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 determination of stockholders entitled to vote at the adjourned meeting. The Corporation shall prepare and make available a list of stockholders entitled to vote at the meeting in accordance with Section 219 of the DGCL, as more fully described in Section 2.11 of these Bylaws.

Section 2.11 — Stockholder List.

The Corporation shall prepare, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, that 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 day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number 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.

If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall 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. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 2.11 or to vote in person or by proxy at any meeting of stockholders.

Section 2.12 — Advance Notice of Stockholder Nominations and Business.

Section 2.12(a) — Annual Meeting Nominations and Business. Nominations of persons for election to the Board and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders only: (i) pursuant to the Corporation's notice of meeting (or any supplement thereto) delivered pursuant to Section 2.4 of these Bylaws; (ii) by or at the direction of the Board or any authorized committee thereof; or (iii) by any stockholder of the Corporation who (A) was a stockholder of record of the Corporation at the time the notice provided for in this Section 2.12 is delivered to the Corporate Secretary of the Corporation and at the time of the annual meeting, (B) is entitled to vote at the meeting, and (C) complies in all respects with the notice procedures set forth in this Section 2.12 as to such business or nomination. For the avoidance of doubt, clause (iii) above shall be the exclusive means for a stockholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and included in the Corporation's notice of meeting) before an annual meeting of stockholders, and a stockholder must comply with the provisions of this Section 2.12 to properly bring any nomination or other business before an annual meeting. Nothing in this Section 2.12 shall be deemed to affect any rights of the holders of any class or series of stock having a preference over the common stock as to dividends or upon liquidation to elect directors under specified circumstances, to the extent set forth in the Certificate of Incorporation.

Section 2.12(b) — Timing Requirements. For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 2.12(a) of these Bylaws, the stockholder must have given timely notice thereof in proper written form to the Corporate Secretary of the Corporation at the principal executive office of the Corporation. To be timely, a stockholder's notice shall be delivered to the Corporate Secretary at the principal executive office of the Corporation not later than the close of business on the ninetieth (90th) day, nor earlier than the close of business on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year's annual meeting of stockholders.

Notwithstanding the foregoing, in the event that the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after the anniversary date of the preceding year's annual meeting, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of (x) the ninetieth (90th) day prior to such annual meeting or (y) 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 announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder's notice as described above. For purposes of the Corporation's first annual meeting of stockholders following the IPO Effective Date, references to the "preceding year's annual meeting" shall be deemed to refer to the date specified in the Corporation's proxy statement for such first annual meeting or, if earlier, any other public announcement by the Corporation setting forth the date of such meeting.

As used in these Bylaws, "public announcement" shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

Section 2.12(c) — Required Content of Stockholder's Notice for Business Proposals. To be in proper written form, a stockholder's notice to the Corporate Secretary with respect to any business (other than nominations) must set forth as to each matter the stockholder proposes to bring before the annual meeting:

(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) the name and record address of the stockholder proposing such business and the name and address of the beneficial owner, if any, on whose behalf the proposal is made;

(iii) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and by such beneficial owner, if any;

(iv) a description of any material interest of the stockholder and the beneficial owner, if any, in such business, including any anticipated benefit to the stockholder or the beneficial owner therefrom;

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

(vi) 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 annual meeting to propose such business;

(vii) a representation as to whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends (A) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation's outstanding capital stock required to approve or adopt the proposal and/or (B) otherwise to solicit proxies or votes from stockholders in support of such proposal; and

(viii) any other information relating to such stockholder, beneficial owner, or proposal 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 the proposal pursuant to Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, and any information regarding any hedging, short position, derivative position, option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Corporation, including any short interest, any borrowing or lending of shares, or any other economic interest in shares of the Corporation, in each case, held by or on behalf of such stockholder or such beneficial owner.

Section 2.12(d) — Required Content of Stockholder's Notice for Nominations. To be in proper written form, a stockholder's notice to the Corporate Secretary with respect to any nomination must set forth:

(i) as to each person whom the stockholder proposes to nominate for election as a director: (A) the name, age, business address, and residence address of 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 or of record by such person; (D) all 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 the election of directors in a contested election pursuant to Section 14(a) of 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 and signed questionnaire regarding the background and qualifications of such person (which questionnaire shall be provided by the Corporate Secretary upon written request of any stockholder of record within ten (10) days of such request); (F) a written representation and agreement (in the form provided by the Corporate Secretary upon written request of any stockholder of record) 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) if elected as a director of the Corporation, will comply with all applicable corporate governance, conflict of interest, confidentiality, and stock ownership and trading policies and guidelines of the Corporation; and (G) information regarding any voting commitments or third-party compensation arrangements, and a statement regarding the independence of the nominee under the rules and listing standards of the New York Stock Exchange, the rules and regulations of the Securities and Exchange Commission, and any publicly disclosed standards used by the Board in determining and disclosing the independence of the Corporation's directors;

(ii) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made, all of the information required by Section 2.12(c)(ii) through Section 2.12(c)(viii) of these Bylaws, as applicable, as if the stockholder were proposing business at the annual meeting.

Section 2.12(e) — Update and Supplement Obligation. A stockholder providing notice of any nomination or business proposal pursuant to this Section 2.12 shall 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 (a) as of the record date for determining the stockholders entitled to notice of the meeting and (b) 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 Corporate Secretary at the principal executive office of the Corporation (i) in the case of the update and supplement required to be made as of the record date, not later than five (5) business days after the record date for determining the stockholders entitled to notice of the meeting, and (ii) 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, not later than eight (8) business days prior to the date for the meeting or any adjournment or postponement thereof (or, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed).

Section 2.12(f) — Special Meetings. Only such business as shall have been brought before the meeting pursuant to the Corporation's notice of meeting pursuant to Section 2.4 of these Bylaws shall be conducted at a special meeting of stockholders. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation's notice of meeting (i) by or at the direction of the Board or any committee thereof, or (ii) provided that the Board has determined that directors shall be elected at such special meeting, by any stockholder of the Corporation who (A) is a stockholder of record at the time the notice provided for in this Section 2.12 is delivered to the Corporate Secretary of the Corporation and at the time of the special meeting, (B) is entitled to vote at the meeting and upon such election, and (C) complies with the notice procedures set forth in this Section 2.12. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation's notice of meeting, if the stockholder's notice required by this Section 2.12 shall be delivered to the Corporate Secretary at the principal executive office of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of (x) the ninetieth (90th) day prior to such special meeting or (y) the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting.

Section 2.12(g) — Compliance and Enforcement. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at an annual or special meeting of stockholders except business brought before the meeting in compliance with the procedures set forth in this Section 2.12, and no person shall be eligible for election as a director of the Corporation unless nominated in compliance with the procedures set forth in this Section 2.12 (or, with respect to Stockholder Nominees, in compliance with Section 2.13 of these Bylaws). Except as otherwise provided by law, 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 Section 2.12, and if the chairperson determines that any proposed nomination or business was not made or proposed in compliance with this Section 2.12, to declare that such defective nomination shall be disregarded or that such proposed business was not properly brought before the meeting and shall not be transacted.

Notwithstanding anything in these Bylaws to the contrary, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.12, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager, or partner of such stockholder, or must be authorized by a writing executed by such stockholder, or by an electronic transmission delivered by such stockholder, to act for such stockholder as proxy at the meeting of stockholders, and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.

This Section 2.12 shall not 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 or to affect the rights, if any, of the holders of any class or series of preferred stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.

Section 2.13 — Proxy Access.

Section 2.13(a) — Eligibility. Subject to the terms and conditions set forth in this Section 2.13, whenever the Board solicits proxies with respect to the election of directors at an annual meeting of stockholders, 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 (or any committee thereof), the name, together with the Required Information (as defined below), of any person nominated for election to the Board (a "Stockholder Nominee") by a stockholder or group of up to twenty (20) stockholders that satisfies the requirements of this Section 2.13 (any such stockholder or group, an "Eligible Stockholder"), and that has owned (as defined below) continuously for at least three (3) years shares of the Corporation's capital stock representing at least three percent (3%) of the outstanding shares entitled to vote in the election of directors as of the date the Proxy Access Notice (as defined below) is delivered to the Corporation and as of the record date for the annual meeting. For purposes of satisfying the ownership requirement under this Section 2.13, two (2) or more stockholders may aggregate their holdings, provided that the number of stockholders in any such group does not exceed twenty (20). For purposes of this Section 2.13, a stockholder shall be deemed to "own" only those outstanding shares of the Corporation's capital stock 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 shares 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 (1) 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 (2) hedging, offsetting, or altering to any degree any gain or loss realized or realizable from maintaining the full economic ownership of such shares by such stockholder or any of its affiliates. A stockholder shall "own" shares held in the name of a nominee or other intermediary so long as the stockholder retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares.

Section 2.13(b) — Number of Stockholder Nominees. The maximum number of Stockholder Nominees (including Stockholder Nominees that were submitted by an Eligible Stockholder pursuant to this Section 2.13 but subsequently either withdrawn or nominated by the Board as Board nominees) appearing in the Corporation's proxy materials with respect to an annual meeting of stockholders shall not exceed the greater of (x) two (2) or (y) twenty percent (20%) of the total number of directors in office as of the last day on which a Proxy Access Notice may be delivered pursuant to this Section 2.13 (rounded down to the nearest whole number) (the "Permitted Number"). In the event that one or more vacancies for any reason occurs on the Board at any time after the last day on which a Proxy Access Notice may be delivered pursuant to this Section 2.13 and before the date of the applicable annual meeting and the Board resolves to reduce the size of the Board in connection therewith, the Permitted Number shall be calculated based on the number of directors in office as so reduced. Any Stockholder Nominee who is subsequently withdrawn, disqualified, or elected to the Board at a prior annual meeting of stockholders shall be counted against the Permitted Number with respect to the applicable annual meeting.

Section 2.13(c) — Nomination Procedures and Timing. An Eligible Stockholder who wishes to nominate a Stockholder Nominee for inclusion in the Corporation's proxy statement for an annual meeting of stockholders must deliver a written notice (the "Proxy Access Notice") to the Corporate Secretary at the principal executive office of the Corporation not later than one hundred twenty (120) days and not earlier than one hundred fifty (150) days before the anniversary of the date that the Corporation first distributed its proxy statement to stockholders for the prior year's annual meeting of stockholders.

In the event that the date of the annual meeting is changed by more than thirty (30) days from the anniversary of the prior year's annual meeting, the Proxy Access Notice must be so delivered not earlier than one hundred fifty (150) days prior to the date of such annual meeting and not later than the close of business on the later of (x) one hundred twenty (120) days before the date of such annual meeting or (y) the tenth (10th) day following the day on which public announcement of the date of such annual meeting is first made.

In no event shall any adjournment, recess, or postponement of an annual meeting or the announcement thereof commence a new time period (or extend any time period) for the delivery of a Proxy Access Notice.

Section 2.13(d) — Required Information. The Proxy Access Notice shall include or be accompanied by:

(i) a written statement by each Stockholder Nominee consenting to being named in the Corporation's proxy statement as a nominee and to serving as a director of the Corporation if elected;

(ii) 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 (3)-year holding period, verifying that, as of a date within seven (7) calendar days of the date the Proxy Access Notice is delivered, the Eligible Stockholder owns, and has owned continuously for at least three (3) years, shares representing at least three percent (3%) of the outstanding shares entitled to vote in the election of directors;

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

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

(v) all information required by the Exchange Act and the rules and regulations promulgated thereunder regarding each Stockholder Nominee and the nominating Eligible Stockholder, including all information that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for the election of directors in a contested election;

(vi) a representation by the nominating Eligible Stockholder (A) that the Eligible Stockholder has owned the requisite shares continuously for at least three (3) years and intends to continue to own such shares through the date of the annual meeting, (B) that the Eligible Stockholder acquired the shares in the ordinary course of business and not with the intent or effect of changing or influencing control of the Corporation, (C) that the Eligible Stockholder intends to appear at the annual meeting in person or by proxy, and (D) that the Eligible Stockholder has not nominated and will not nominate for election to the Board at the annual meeting any person other than the Stockholder Nominee(s) identified in the Proxy Access Notice;

(vii) a statement of each Stockholder Nominee's qualifications and independence for service on all standing committees of the Board under the applicable rules, including the listing standards of the New York Stock Exchange (including Section 303A of the NYSE Listed Company Manual), the rules and regulations of the Securities and Exchange Commission, and any publicly disclosed standards used by the Board in determining and disclosing the independence of the Corporation's directors; and

(viii) a written agreement by each Stockholder Nominee to comply with all applicable corporate governance, conflict of interest, confidentiality, and stock ownership and trading policies and guidelines of the Corporation that are publicly available, and to the extent applicable, to make such filings and disclosures as are required under the federal securities laws and rules thereunder in connection with such person's nomination and service as a director.

The information and documents required by this Section 2.13(d) are referred to collectively as the "Required Information."

Section 2.13(e) — Exclusion and Disqualification. The Corporation may omit a Stockholder Nominee from its proxy materials, and such nomination shall be disregarded and no vote on such Stockholder Nominee will occur, notwithstanding that proxies in respect of such vote may have been received by the Corporation, if:

(i) the Stockholder Nominee does not meet the independence requirements of the rules and listing standards of the New York Stock Exchange, the rules and regulations of the Securities and Exchange Commission, or any publicly disclosed standards used by the Board in determining and disclosing the independence of the Corporation's directors;

(ii) the election of such Stockholder Nominee as a director would cause the Corporation to violate the Certificate of Incorporation, these Bylaws, or any applicable law, rule, or regulation (including, without limitation, any listing standard of the New York Stock Exchange);

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

(iv) the Stockholder Nominee is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in a criminal proceeding within the past ten (10) years;

(v) the Stockholder Nominee or the nominating Eligible Stockholder shall have provided information to the Corporation in connection with such nomination that was untrue in any material respect or that omitted to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or

(vi) the Eligible Stockholder or Stockholder Nominee otherwise fails to comply with any of its or such person's obligations under this Section 2.13.

Section 2.13(f) — Compensation and Reimbursement. The Corporation shall not be obligated to reimburse any Eligible Stockholder or Stockholder Nominee for any costs or expenses incurred in connection with the nomination of a Stockholder Nominee, the solicitation of proxies with respect to such nomination, or any related activity. Neither the Eligible Stockholder nor the Stockholder Nominee shall have any right to compensation, reimbursement, or indemnification from the Corporation in connection with such nomination, except to the extent that a Stockholder Nominee, once elected to the Board, may be entitled to indemnification pursuant to Article VII of these Bylaws or applicable law in such person's capacity as a director of the Corporation.

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. The Board shall exercise all powers conferred upon the Corporation by the DGCL, the Certificate of Incorporation, and these Bylaws, except as expressly reserved to the stockholders by the DGCL, the Certificate of Incorporation, or these Bylaws. In exercising such powers, the Board shall act in accordance with its fiduciary duties to the Corporation and its stockholders under applicable law.

Section 3.2 — Number of Directors.

The number of directors constituting the whole Board shall be fixed from time to time exclusively by resolution adopted by a majority of the whole Board; provided, however, that in no event shall the number of directors be less than the minimum required by the DGCL. The initial number of directors constituting the whole Board upon the effectiveness of these Bylaws shall be seven (7). The initial members of the Board upon the IPO Effective Date shall be:

1. Dr. Nathaniel Rourke (Chairman)

2. Margaret Tsujimoto

3. Leonard marsh

4. Diana Coltrane

5. Howard Feng

6. Carolyn Whittemore

7. Dr. Samuel Obadina

No decrease in the authorized number of directors constituting the whole Board shall shorten the term of any incumbent director.

Section 3.3 — Classified Board Structure.

The directors of the Corporation (other than those who may be elected by the holders of any class or series of preferred stock as provided for or fixed pursuant to the provisions of the Certificate of Incorporation) shall be divided into three (3) classes, designated Class I, Class II, and Class III, as nearly equal in number as the then total number of directors permits. The initial assignment of directors to each class shall be made by the Board, and the Board shall designate the class to which each initial director is assigned as follows:

Class I (term expiring at the first annual meeting of stockholders following the IPO Effective Date): Directors to be designated by the Board prior to or upon the IPO Effective Date;

Class II (term expiring at the second annual meeting of stockholders following the IPO Effective Date): Directors to be designated by the Board prior to or upon the IPO Effective Date; and

Class III (term expiring at the third annual meeting of stockholders following the IPO Effective Date): Directors to be designated by the Board prior to or upon the IPO Effective Date.

Each class shall hold office for staggered three (3)-year terms, such that at each annual meeting of stockholders, the successors to the class of directors whose term expires at such annual meeting shall be elected to hold office for a term expiring at the third succeeding annual meeting of stockholders. At each annual meeting of stockholders, commencing with the first annual meeting following the IPO Effective Date, each director chosen to succeed those directors whose terms then expire shall be elected to serve for a three (3)-year term. Each director shall hold office until such director's successor is duly elected and qualified, or until such director's earlier resignation, removal, or death.

Section 3.4 — Election of Directors.

Directors shall be elected at each annual meeting of stockholders at which such election is required by a plurality of the votes cast by the holders of shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. 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 class or series of preferred stock, vacancies on the Board resulting from death, resignation, removal, disqualification, or any other cause, and newly created directorships resulting from any increase in the authorized number of directors, shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board, or by a sole remaining director, and shall not be filled by the stockholders. Any director elected to fill a vacancy shall hold office for the remainder of the full term of the class of directors in which such vacancy occurred and until such director's successor shall have been duly elected and qualified. Any director appointed to fill a newly created directorship resulting from an increase in the number of directors shall hold office for a term that shall coincide with the remaining term of the class to which such director has been assigned by the Board. No reduction in the authorized number of directors shall remove any director prior to the expiration of such director's term of office.

Section 3.6 — Removal.

Subject to the rights of the holders of any class or series of preferred stock, directors may be removed 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 the then-outstanding shares of stock of the Corporation entitled to vote in the election of directors, voting together as a single class. This removal standard is consistent with the Certificate of Incorporation and with the classified board structure set forth in Section 3.3 of these Bylaws. For purposes of this Section 3.6, "cause" shall mean (a) a conviction of a felony, (b) a declaration of unsound mind by a court of competent jurisdiction, (c) gross misconduct or neglect of duties, or (d) such other cause as may be defined in the Certificate of Incorporation.

Section 3.7 — Resignation.

Any director may resign at any time by delivering a written notice of resignation, or a notice of resignation by electronic transmission, to the Chairman of the Board, the Chief Executive Officer, or the Corporate Secretary. Such resignation shall be effective upon delivery of the notice, unless the notice specifies a later effective date or an effective date determined upon the happening of an event (in which case such resignation shall be effective at such later date or upon the happening of such event). Acceptance of such resignation shall not be necessary to make it effective, unless the resignation is conditioned upon acceptance.

Section 3.8 — Regular Meetings.

Regular meetings of the Board may be held at such times, dates, and places (within or without the State of Delaware) as the Board may from time to time determine by resolution. Notice of regular meetings need not be given if the schedule, time, date, and place (if any) of such regular meetings have been fixed by resolution of the Board. A meeting of the Board may be held without notice immediately after the annual meeting of stockholders, at the same place and at such time as the Board may fix.

Section 3.9 — Special Meetings.

Special meetings of the Board may be called at any time by the Chairman of the Board, the Chief Executive Officer, or any two (2) directors, by delivery of notice to each director. Notice of a special meeting shall state the date, time, and place (if any) of the meeting and shall be given to each director (a) at least twenty-four (24) hours before the time of the meeting if delivered personally, by telephone, or by electronic transmission (including electronic mail or facsimile), (b) at least forty-eight (48) hours before the time of the meeting if delivered by reputable overnight courier service, or (c) at least five (5) days before the time of the meeting if delivered by United States mail, postage prepaid. Unless otherwise indicated in the notice thereof, any and all business of the Corporation may be transacted at a special meeting of the Board. Notice of a special meeting need not specify the purpose of the special meeting, and the transaction of business at a special meeting shall not be limited to the purpose or purposes stated in the notice.

Section 3.10 — Quorum and Voting.

At all meetings of the Board, a majority of the total number of directors then in office shall constitute a quorum for the transaction of business. If a quorum is not present at any meeting of the Board, a majority of the directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. The act of a majority of the directors present at any meeting of the Board at which a quorum is present shall be the act of the Board, except as otherwise specifically required by the DGCL, the Certificate of Incorporation, or these Bylaws. A director of the Corporation who is present at a meeting of the Board or a committee thereof 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 such director shall file a written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Corporate Secretary of the Corporation immediately after the adjournment of the meeting.

Section 3.11 — Action Without a Meeting.

Any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission. After an action is taken without a meeting, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board or the committee, as applicable. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Such consent shall have the same force and effect as a unanimous vote of the Board or committee, as the case may be, at a duly called and held meeting.

Section 3.12 — Telephonic and Electronic Meetings.

Members of the Board, or any committee designated by the Board, may participate in a meeting of the Board or such committee by means of conference telephone, videoconference, or other communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section 3.12 shall constitute presence in person at the meeting for all purposes, including the determination of a quorum and the taking of any action.

Section 3.13 — Compensation of Directors.

Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board 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 or any committee thereof and may be paid a fixed sum for attendance at each meeting of the Board or any committee thereof and/or a stated annual retainer. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of standing or special committees may be allowed like compensation for attending committee meetings. The Board may, from time to time, adopt and amend a non-employee director compensation policy setting forth the compensation payable to non-employee directors. Directors shall also be reimbursed for all reasonable expenses incurred in connection with their service on the Board and any committee thereof.

Section 3.14 — Chairman of the Board.

The Chairman of the Board shall be elected by and from among the members of the Board. The Chairman of the Board shall preside at all meetings of the Board and at all meetings of stockholders. The Chairman of the Board shall perform such other duties and exercise such other powers as the Board may from time to time prescribe. The Chairman of the Board need not be an officer or employee of the Corporation. The initial Chairman of the Board shall be Dr. Nathaniel Rourke.

ARTICLE IV — COMMITTEES OF THE BOARD

Section 4.1 — Designation of Committees.

The Board may, by resolution passed by a majority of the whole Board, designate one or more committees of the Board, each committee to consist of one or more of the directors of the Corporation. The Board may

AMENDED AND RESTATED BYLAWS
OF
ARBOR HEALTH TECHNOLOGIES INC.
A Delaware Corporation
Adopted by the Board of Directors on February 8, 2024
Effective upon the closing of the Corporation's initial public offering of common stock
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RECITALS
These Amended and Restated Bylaws (these "Bylaws") of Arbor Health Technologies Inc., a Delaware corporation (the "Corporation"), are adopted by the Board of Directors of the Corporation (the "Board") on February 8, 2024, and shall become effective upon the closing of the Corporation's initial public offering of its common stock, par value $0.001 per share, registered under the Securities Act of 1933, as amended (the "IPO Effective Date").
These Bylaws amend and restate in their entirety the bylaws of the Corporation as previously in effect prior to the IPO Effective Date. All prior bylaws of the Corporation, as adopted or amended prior to the date hereof, are hereby superseded and replaced in their entirety by these Bylaws, which shall govern the internal affairs of the Corporation from and after the IPO Effective Date.
These Bylaws are adopted in connection with and subject to the Amended and Restated Certificate of Incorporation of the Corporation, as filed with the Secretary of State of the State of Delaware on the closing date of the Corporation's initial public offering (the "Certificate of Incorporation"). In the event of any inconsistency between the provisions of these Bylaws and the Certificate of Incorporation, the provisions of the Certificate of Incorporation shall control to the fullest extent permitted by law.
ARTICLE I — OFFICES
Section 1.1 — Registered Office.
The registered office of the Corporation in the State of Delaware shall be at the office of National Registered Agents of Delaware, Inc., 160 Greentree Drive, Suite 101, Dover, Delaware 19904, and the registered agent of the Corporation at such address shall be National Registered Agents of Delaware, Inc. The Board may, by resolution adopted at any regular or special meeting of the Board, change the registered office and registered agent of the Corporation from time to time in accordance with the provisions of the General Corporation Law of the State of Delaware (the "DGCL").
Section 1.2 — Principal Executive Office.
The principal executive office of the Corporation shall be located at 275 Kendall Avenue, Suite 1400, Cambridge, Massachusetts 02142, or at such other place as the Board may from time to time determine by resolution duly adopted at a regular or special meeting of the Board. The designation of the principal executive office may be changed by the Board without amendment to these Bylaws.
Section 1.3 — Other Offices.
The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board may from time to time determine or as the business and affairs of the Corporation may require. The establishment of any such office shall not require an amendment to these Bylaws.
ARTICLE II — MEETINGS OF STOCKHOLDERS
Section 2.1 — Place of Meetings.
Meetings of stockholders of the Corporation may be held at such place, if any, either within or without the State of Delaware, as shall be determined from time to time by the Board, the Chairman of the Board, or the Chief Executive Officer and as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. The Board may, in its sole discretion, determine that any meeting of stockholders shall not be held at any place but shall instead be held solely by means of remote communication in accordance with Section 211(a)(2) of the DGCL and such other provisions of the DGCL as may be applicable. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication, participate in a meeting of stockholders and be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (a) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder, (b) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (c) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.
Section 2.2 — Annual Meeting.
An annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly be brought before the meeting shall be held at such date, time, and place (if any) or by means of remote communication as may be designated by the Board from time to time. The Board shall have the authority to determine the date, time, and place (if any) of the annual meeting, and such determination shall be set forth in the notice of the meeting delivered in accordance with Section 2.4 of these Bylaws. At the annual meeting, directors shall be elected in accordance with Section 3.4 of these Bylaws, and only such other business shall be conducted as shall have been properly brought before the meeting in accordance with Section 2.12 of these Bylaws.
Section 2.3 — Special Meetings.
Special meetings of stockholders of the Corporation may be called at any time only by (a) the Board pursuant to a resolution adopted by a majority of the total number of directors then in office, (b) the Chairman of the Board, or (c) the Chief Executive Officer. The ability to call a special meeting of stockholders is vested exclusively in the foregoing persons, and stockholders of the Corporation shall not have the right to call or to require the calling of a special meeting of stockholders. This limitation on the right to call special meetings is consistent with the Certificate of Incorporation, which prohibits stockholder action by written consent and restricts the right to call special meetings as set forth herein. Only such business as is specified in the notice of a special meeting of stockholders given in accordance with Section 2.4 of these Bylaws may be brought before and conducted at such special meeting.
Section 2.4 — Notice of Meetings.
Written notice of each meeting of stockholders, whether annual or special, shall be given to each stockholder of record entitled to vote at the meeting. The notice shall state the place (if any), date, and time of the meeting, the means of remote communication, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting), and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise required by the DGCL, the Certificate of Incorporation, or these Bylaws, notice shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting.
Notice may be delivered personally, by mail, or by electronic transmission (to the extent permitted by Section 232 of the DGCL) to each stockholder of record entitled to vote at the meeting, directed to the stockholder at such stockholder's address (or, in the case of electronic transmission, the electronic mail address, facsimile number, or other address for electronic transmission) as it appears on the records of the Corporation. If mailed, notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at the stockholder's address as it appears on the records of the Corporation. If notice is given by electronic transmission, such 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 given before or after the time of the meeting or event to which the notice relates, shall be deemed equivalent to notice. Attendance of a stockholder at a meeting shall constitute a waiver of notice of such meeting, except where the stockholder attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
Section 2.5 — Quorum.
Except as otherwise provided by the DGCL, the Certificate of Incorporation, or these Bylaws, the holders of a majority of the voting power of all of the shares of stock of the Corporation issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum at all meetings of stockholders for the transaction of business. Where a separate vote by a class or series is required, a majority of the voting power of the outstanding shares of such class or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter.
If a quorum is not present at any meeting of 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 at the meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At 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. 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 shall fix a new record date for notice of such adjourned meeting in accordance with Section 213(a) of the DGCL, 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.
No business may be transacted at an adjourned meeting other than business that might have been transacted at the meeting as originally noticed.
Section 2.6 — Voting.
Unless otherwise provided in the Certificate of Incorporation or required by the DGCL, each holder of shares of common stock of the Corporation, par value $0.001 per share, shall be entitled to one (1) vote per share on all matters submitted to a vote of stockholders. In the election of directors, directors shall be elected by a plurality of the votes cast by the holders of shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. All other matters brought before the meeting 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, except where the Certificate of Incorporation, these Bylaws, or the DGCL requires a different vote, in which case such express provision shall govern and control.
Without limiting the foregoing, the Certificate of Incorporation provides that certain matters, including the amendment, alteration, or repeal of these Bylaws by the stockholders, shall require the affirmative vote of the holders of at least sixty-six and two-thirds percent (66⅔%) of the voting power of the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class.
Section 2.7 — Proxies.
Each stockholder entitled to vote at a meeting of stockholders, or to express consent or dissent to corporate action in writing without a meeting (to the extent permitted), may authorize another person or persons to act for such stockholder by proxy. Such proxy must be in writing and signed by the stockholder or must be authorized by the stockholder by electronic transmission, as permitted under Section 212 of the DGCL. A proxy must be filed with the Secretary of the Corporation before or at the time of the meeting. No proxy shall be voted or acted upon after three (3) years from its date, 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. A stockholder may revoke any proxy that is not irrevocable by attending the meeting and voting in person or by filing an instrument in writing revoking the proxy, or by filing another duly executed proxy bearing a later date, with the Secretary of the Corporation.
Section 2.8 — Conduct of Meetings.
The chairman of each meeting of stockholders shall be the Chairman of the Board, or in the absence of the Chairman of the Board, the Chief Executive Officer, or in the absence of both the Chairman of the Board and the Chief Executive Officer, a person designated by the Board. The Secretary of the Corporation shall act as secretary of each meeting of stockholders. In the absence of the Secretary of the Corporation, an Assistant Secretary shall act as secretary of the meeting, or in the absence of an Assistant Secretary, the chairperson of the meeting may appoint any person to act as secretary of the meeting.
The chairperson of the meeting shall have the authority and discretion to establish rules of conduct for the meeting, including, without limitation, rules regarding the time allotted to stockholders to speak, the order of business to be conducted at the meeting, the procedures for maintaining order at the meeting, and restrictions on entry to the meeting after the time fixed for the commencement thereof. The chairperson shall have the power to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed in accordance with these Bylaws, and if any proposed nomination or business is not in compliance with these Bylaws, to declare that such defective nomination or proposal shall be disregarded. The chairperson shall also have the power to adjourn the meeting from time to time.
The Board may, in its discretion, or as required by the DGCL, appoint one or more inspectors of election for any meeting of stockholders. Such inspectors shall perform such duties as may be required by the DGCL, including ascertaining the number of shares outstanding and the voting power of each, determining the shares represented at the meeting and the validity of proxies and ballots, counting all votes and ballots, and certifying the results of the vote.
Section 2.9 — No Stockholder Action by Written Consent.
No action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice, and without a vote, and the power of stockholders to consent in writing, without a meeting, to the taking of any action is specifically denied. This provision is consistent with the Certificate of Incorporation, which eliminates the right of stockholders to act by written consent in lieu of a meeting.
Section 2.10 — Record Date.
In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, or entitled to vote at any meeting of stockholders, 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 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.
The record date for the determination of stockholders entitled to notice of or to vote at any meeting of stockholders shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting. The record date for any other purpose shall not be more than sixty (60) days prior to such other action.
If no record date is fixed by the Board, (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 purpose other than notice of or voting at a meeting shall be at the close of business on the day on which the Board 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, unless the Board fixes a new record date for the determination of stockholders entitled to vote at the adjourned meeting, in which case the Board 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 determination of stockholders entitled to vote at the adjourned meeting. The Corporation shall prepare and make available a list of stockholders entitled to vote at the meeting in accordance with Section 219 of the DGCL, as more fully described in Section 2.11 of these Bylaws.
Section 2.11 — Stockholder List.
The Corporation shall prepare, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, that 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 day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number 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.
If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall 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. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 2.11 or to vote in person or by proxy at any meeting of stockholders.
Section 2.12 — Advance Notice of Stockholder Nominations and Business.
Section 2.12(a) — Annual Meeting Nominations and Business.  Nominations of persons for election to the Board and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders only: (i) pursuant to the Corporation's notice of meeting (or any supplement thereto) delivered pursuant to Section 2.4 of these Bylaws; (ii) by or at the direction of the Board or any authorized committee thereof; or (iii) by any stockholder of the Corporation who (A) was a stockholder of record of the Corporation at the time the notice provided for in this Section 2.12 is delivered to the Corporate Secretary of the Corporation and at the time of the annual meeting, (B) is entitled to vote at the meeting, and (C) complies in all respects with the notice procedures set forth in this Section 2.12 as to such business or nomination. For the avoidance of doubt, clause (iii) above shall be the exclusive means for a stockholder to make nominations or submit other business (other than matters properly brought under Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and included in the Corporation's notice of meeting) before an annual meeting of stockholders, and a stockholder must comply with the provisions of this Section 2.12 to properly bring any nomination or other business before an annual meeting. Nothing in this Section 2.12 shall be deemed to affect any rights of the holders of any class or series of stock having a preference over the common stock as to dividends or upon liquidation to elect directors under specified circumstances, to the extent set forth in the Certificate of Incorporation.
Section 2.12(b) — Timing Requirements.  For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (iii) of Section 2.12(a) of these Bylaws, the stockholder must have given timely notice thereof in proper written form to the Corporate Secretary of the Corporation at the principal executive office of the Corporation. To be timely, a stockholder's notice shall be delivered to the Corporate Secretary at the principal executive office of the Corporation not later than the close of business on the ninetieth (90th) day, nor earlier than the close of business on the one hundred twentieth (120th) day, prior to the first anniversary of the preceding year's annual meeting of stockholders.
Notwithstanding the foregoing, in the event that the date of the annual meeting is more than thirty (30) days before or more than seventy (70) days after the anniversary date of the preceding year's annual meeting, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the one hundred twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of (x) the ninetieth (90th) day prior to such annual meeting or (y) 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 announcement thereof commence a new time period (or extend any time period) for the giving of a stockholder's notice as described above. For purposes of the Corporation's first annual meeting of stockholders following the IPO Effective Date, references to the "preceding year's annual meeting" shall be deemed to refer to the date specified in the Corporation's proxy statement for such first annual meeting or, if earlier, any other public announcement by the Corporation setting forth the date of such meeting.
As used in these Bylaws, "public announcement" shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14, or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.
Section 2.12(c) — Required Content of Stockholder's Notice for Business Proposals.  To be in proper written form, a stockholder's notice to the Corporate Secretary with respect to any business (other than nominations) must set forth as to each matter the stockholder proposes to bring before the annual meeting:
(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) the name and record address of the stockholder proposing such business and the name and address of the beneficial owner, if any, on whose behalf the proposal is made;
(iii) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and by such beneficial owner, if any;
(iv) a description of any material interest of the stockholder and the beneficial owner, if any, in such business, including any anticipated benefit to the stockholder or the beneficial owner therefrom;
(v) a description of all agreements, arrangements, and understandings between or among the stockholder, the beneficial owner (if any), and any other person or persons (including their names) in connection with the proposal of such business;
(vi) 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 annual meeting to propose such business;
(vii) a representation as to whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends (A) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation's outstanding capital stock required to approve or adopt the proposal and/or (B) otherwise to solicit proxies or votes from stockholders in support of such proposal; and
(viii) any other information relating to such stockholder, beneficial owner, or proposal 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 the proposal pursuant to Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, and any information regarding any hedging, short position, derivative position, option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or any other direct or indirect opportunity to profit or share in any profit derived from any increase or decrease in the value of shares of the Corporation, including any short interest, any borrowing or lending of shares, or any other economic interest in shares of the Corporation, in each case, held by or on behalf of such stockholder or such beneficial owner.
Section 2.12(d) — Required Content of Stockholder's Notice for Nominations.  To be in proper written form, a stockholder's notice to the Corporate Secretary with respect to any nomination must set forth:
(i) as to each person whom the stockholder proposes to nominate for election as a director: (A) the name, age, business address, and residence address of 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 or of record by such person; (D) all 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 the election of directors in a contested election pursuant to Section 14(a) of 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 and signed questionnaire regarding the background and qualifications of such person (which questionnaire shall be provided by the Corporate Secretary upon written request of any stockholder of record within ten (10) days of such request); (F) a written representation and agreement (in the form provided by the Corporate Secretary upon written request of any stockholder of record) 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) if elected as a director of the Corporation, will comply with all applicable corporate governance, conflict of interest, confidentiality, and stock ownership and trading policies and guidelines of the Corporation; and (G) information regarding any voting commitments or third-party compensation arrangements, and a statement regarding the independence of the nominee under the rules and listing standards of the New York Stock Exchange, the rules and regulations of the Securities and Exchange Commission, and any publicly disclosed standards used by the Board in determining and disclosing the independence of the Corporation's directors;
(ii) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made, all of the information required by Section 2.12(c)(ii) through Section 2.12(c)(viii) of these Bylaws, as applicable, as if the stockholder were proposing business at the annual meeting.
Section 2.12(e) — Update and Supplement Obligation.  A stockholder providing notice of any nomination or business proposal pursuant to this Section 2.12 shall 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 (a) as of the record date for determining the stockholders entitled to notice of the meeting and (b) 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 Corporate Secretary at the principal executive office of the Corporation (i) in the case of the update and supplement required to be made as of the record date, not later than five (5) business days after the record date for determining the stockholders entitled to notice of the meeting, and (ii) 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, not later than eight (8) business days prior to the date for the meeting or any adjournment or postponement thereof (or, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed).
Section 2.12(f) — Special Meetings.  Only such business as shall have been brought before the meeting pursuant to the Corporation's notice of meeting pursuant to Section 2.4 of these Bylaws shall be conducted at a special meeting of stockholders. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation's notice of meeting (i) by or at the direction of the Board or any committee thereof, or (ii) provided that the Board has determined that directors shall be elected at such special meeting, by any stockholder of the Corporation who (A) is a stockholder of record at the time the notice provided for in this Section 2.12 is delivered to the Corporate Secretary of the Corporation and at the time of the special meeting, (B) is entitled to vote at the meeting and upon such election, and (C) complies with the notice procedures set forth in this Section 2.12. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation's notice of meeting, if the stockholder's notice required by this Section 2.12 shall be delivered to the Corporate Secretary at the principal executive office of the Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior to such special meeting and not later than the close of business on the later of (x) the ninetieth (90th) day prior to such special meeting or (y) the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting.
Section 2.12(g) — Compliance and Enforcement.  Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted at an annual or special meeting of stockholders except business brought before the meeting in compliance with the procedures set forth in this Section 2.12, and no person shall be eligible for election as a director of the Corporation unless nominated in compliance with the procedures set forth in this Section 2.12 (or, with respect to Stockholder Nominees, in compliance with Section 2.13 of these Bylaws). Except as otherwise provided by law, 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 Section 2.12, and if the chairperson determines that any proposed nomination or business was not made or proposed in compliance with this Section 2.12, to declare that such defective nomination shall be disregarded or that such proposed business was not properly brought before the meeting and shall not be transacted.
Notwithstanding anything in these Bylaws to the contrary, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.12, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager, or partner of such stockholder, or must be authorized by a writing executed by such stockholder, or by an electronic transmission delivered by such stockholder, to act for such stockholder as proxy at the meeting of stockholders, and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.
This Section 2.12 shall not 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 or to affect the rights, if any, of the holders of any class or series of preferred stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.
Section 2.13 — Proxy Access.
Section 2.13(a) — Eligibility.  Subject to the terms and conditions set forth in this Section 2.13, whenever the Board solicits proxies with respect to the election of directors at an annual meeting of stockholders, 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 (or any committee thereof), the name, together with the Required Information (as defined below), of any person nominated for election to the Board (a "Stockholder Nominee") by a stockholder or group of up to twenty (20) stockholders that satisfies the requirements of this Section 2.13 (any such stockholder or group, an "Eligible Stockholder"), and that has owned (as defined below) continuously for at least three (3) years shares of the Corporation's capital stock representing at least three percent (3%) of the outstanding shares entitled to vote in the election of directors as of the date the Proxy Access Notice (as defined below) is delivered to the Corporation and as of the record date for the annual meeting. For purposes of satisfying the ownership requirement under this Section 2.13, two (2) or more stockholders may aggregate their holdings, provided that the number of stockholders in any such group does not exceed twenty (20). For purposes of this Section 2.13, a stockholder shall be deemed to "own" only those outstanding shares of the Corporation's capital stock 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 shares 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 (1) 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 (2) hedging, offsetting, or altering to any degree any gain or loss realized or realizable from maintaining the full economic ownership of such shares by such stockholder or any of its affiliates. A stockholder shall "own" shares held in the name of a nominee or other intermediary so long as the stockholder retains the right to instruct how the shares are voted with respect to the election of directors and possesses the full economic interest in the shares.
Section 2.13(b) — Number of Stockholder Nominees.  The maximum number of Stockholder Nominees (including Stockholder Nominees that were submitted by an Eligible Stockholder pursuant to this Section 2.13 but subsequently either withdrawn or nominated by the Board as Board nominees) appearing in the Corporation's proxy materials with respect to an annual meeting of stockholders shall not exceed the greater of (x) two (2) or (y) twenty percent (20%) of the total number of directors in office as of the last day on which a Proxy Access Notice may be delivered pursuant to this Section 2.13 (rounded down to the nearest whole number) (the "Permitted Number"). In the event that one or more vacancies for any reason occurs on the Board at any time after the last day on which a Proxy Access Notice may be delivered pursuant to this Section 2.13 and before the date of the applicable annual meeting and the Board resolves to reduce the size of the Board in connection therewith, the Permitted Number shall be calculated based on the number of directors in office as so reduced. Any Stockholder Nominee who is subsequently withdrawn, disqualified, or elected to the Board at a prior annual meeting of stockholders shall be counted against the Permitted Number with respect to the applicable annual meeting.
Section 2.13(c) — Nomination Procedures and Timing.  An Eligible Stockholder who wishes to nominate a Stockholder Nominee for inclusion in the Corporation's proxy statement for an annual meeting of stockholders must deliver a written notice (the "Proxy Access Notice") to the Corporate Secretary at the principal executive office of the Corporation not later than one hundred twenty (120) days and not earlier than one hundred fifty (150) days before the anniversary of the date that the Corporation first distributed its proxy statement to stockholders for the prior year's annual meeting of stockholders.
In the event that the date of the annual meeting is changed by more than thirty (30) days from the anniversary of the prior year's annual meeting, the Proxy Access Notice must be so delivered not earlier than one hundred fifty (150) days prior to the date of such annual meeting and not later than the close of business on the later of (x) one hundred twenty (120) days before the date of such annual meeting or (y) the tenth (10th) day following the day on which public announcement of the date of such annual meeting is first made.
In no event shall any adjournment, recess, or postponement of an annual meeting or the announcement thereof commence a new time period (or extend any time period) for the delivery of a Proxy Access Notice.
Section 2.13(d) — Required Information.  The Proxy Access Notice shall include or be accompanied by:
(i) a written statement by each Stockholder Nominee consenting to being named in the Corporation's proxy statement as a nominee and to serving as a director of the Corporation if elected;
(ii) 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 (3)-year holding period, verifying that, as of a date within seven (7) calendar days of the date the Proxy Access Notice is delivered, the Eligible Stockholder owns, and has owned continuously for at least three (3) years, shares representing at least three percent (3%) of the outstanding shares entitled to vote in the election of directors;
(iii) the written consent of each Stockholder Nominee to being named in the proxy statement and form of proxy and to serving as a director if elected;
(iv) a copy of the Schedule 14N that has been filed with the Securities and Exchange Commission as required by Rule 14a-18 under the Exchange Act;
(v) all information required by the Exchange Act and the rules and regulations promulgated thereunder regarding each Stockholder Nominee and the nominating Eligible Stockholder, including all information that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies for the election of directors in a contested election;
(vi) a representation by the nominating Eligible Stockholder (A) that the Eligible Stockholder has owned the requisite shares continuously for at least three (3) years and intends to continue to own such shares through the date of the annual meeting, (B) that the Eligible Stockholder acquired the shares in the ordinary course of business and not with the intent or effect of changing or influencing control of the Corporation, (C) that the Eligible Stockholder intends to appear at the annual meeting in person or by proxy, and (D) that the Eligible Stockholder has not nominated and will not nominate for election to the Board at the annual meeting any person other than the Stockholder Nominee(s) identified in the Proxy Access Notice;
(vii) a statement of each Stockholder Nominee's qualifications and independence for service on all standing committees of the Board under the applicable rules, including the listing standards of the New York Stock Exchange (including Section 303A of the NYSE Listed Company Manual), the rules and regulations of the Securities and Exchange Commission, and any publicly disclosed standards used by the Board in determining and disclosing the independence of the Corporation's directors; and
(viii) a written agreement by each Stockholder Nominee to comply with all applicable corporate governance, conflict of interest, confidentiality, and stock ownership and trading policies and guidelines of the Corporation that are publicly available, and to the extent applicable, to make such filings and disclosures as are required under the federal securities laws and rules thereunder in connection with such person's nomination and service as a director.
The information and documents required by this Section 2.13(d) are referred to collectively as the "Required Information."
Section 2.13(e) — Exclusion and Disqualification.  The Corporation may omit a Stockholder Nominee from its proxy materials, and such nomination shall be disregarded and no vote on such Stockholder Nominee will occur, notwithstanding that proxies in respect of such vote may have been received by the Corporation, if:
(i) the Stockholder Nominee does not meet the independence requirements of the rules and listing standards of the New York Stock Exchange, the rules and regulations of the Securities and Exchange Commission, or any publicly disclosed standards used by the Board in determining and disclosing the independence of the Corporation's directors;
(ii) the election of such Stockholder Nominee as a director would cause the Corporation to violate the Certificate of Incorporation, these Bylaws, or any applicable law, rule, or regulation (including, without limitation, any listing standard of the New York Stock Exchange);
(iii) the Stockholder Nominee is or has been, within the past three (3) years, an officer or director of a competitor, as defined for purposes of Section 8 of the Clayton Antitrust Act of 1914, as amended;
(iv) the Stockholder Nominee is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses) or has been convicted in a criminal proceeding within the past ten (10) years;
(v) the Stockholder Nominee or the nominating Eligible Stockholder shall have provided information to the Corporation in connection with such nomination that was untrue in any material respect or that omitted to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading; or
(vi) the Eligible Stockholder or Stockholder Nominee otherwise fails to comply with any of its or such person's obligations under this Section 2.13.
Section 2.13(f) — Compensation and Reimbursement.  The Corporation shall not be obligated to reimburse any Eligible Stockholder or Stockholder Nominee for any costs or expenses incurred in connection with the nomination of a Stockholder Nominee, the solicitation of proxies with respect to such nomination, or any related activity. Neither the Eligible Stockholder nor the Stockholder Nominee shall have any right to compensation, reimbursement, or indemnification from the Corporation in connection with such nomination, except to the extent that a Stockholder Nominee, once elected to the Board, may be entitled to indemnification pursuant to Article VII of these Bylaws or applicable law in such person's capacity as a director of the Corporation.
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. The Board shall exercise all powers conferred upon the Corporation by the DGCL, the Certificate of Incorporation, and these Bylaws, except as expressly reserved to the stockholders by the DGCL, the Certificate of Incorporation, or these Bylaws. In exercising such powers, the Board shall act in accordance with its fiduciary duties to the Corporation and its stockholders under applicable law.
Section 3.2 — Number of Directors.
The number of directors constituting the whole Board shall be fixed from time to time exclusively by resolution adopted by a majority of the whole Board; provided, however, that in no event shall the number of directors be less than the minimum required by the DGCL. The initial number of directors constituting the whole Board upon the effectiveness of these Bylaws shall be seven (7). The initial members of the Board upon the IPO Effective Date shall be:
1.  Dr. Nathaniel Rourke (Chairman)
2.  Margaret Tsujimoto
3.  Leonard marsh
4.  Diana Coltrane
5.  Howard Feng
6.  Carolyn Whittemore
7.  Dr. Samuel Obadina
No decrease in the authorized number of directors constituting the whole Board shall shorten the term of any incumbent director.
Section 3.3 — Classified Board Structure.
The directors of the Corporation (other than those who may be elected by the holders of any class or series of preferred stock as provided for or fixed pursuant to the provisions of the Certificate of Incorporation) shall be divided into three (3) classes, designated Class I, Class II, and Class III, as nearly equal in number as the then total number of directors permits. The initial assignment of directors to each class shall be made by the Board, and the Board shall designate the class to which each initial director is assigned as follows:
Class I (term expiring at the first annual meeting of stockholders following the IPO Effective Date): Directors to be designated by the Board prior to or upon the IPO Effective Date;
Class II (term expiring at the second annual meeting of stockholders following the IPO Effective Date): Directors to be designated by the Board prior to or upon the IPO Effective Date; and
Class III (term expiring at the third annual meeting of stockholders following the IPO Effective Date): Directors to be designated by the Board prior to or upon the IPO Effective Date.
Each class shall hold office for staggered three (3)-year terms, such that at each annual meeting of stockholders, the successors to the class of directors whose term expires at such annual meeting shall be elected to hold office for a term expiring at the third succeeding annual meeting of stockholders. At each annual meeting of stockholders, commencing with the first annual meeting following the IPO Effective Date, each director chosen to succeed those directors whose terms then expire shall be elected to serve for a three (3)-year term. Each director shall hold office until such director's successor is duly elected and qualified, or until such director's earlier resignation, removal, or death.
Section 3.4 — Election of Directors.
Directors shall be elected at each annual meeting of stockholders at which such election is required by a plurality of the votes cast by the holders of shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. 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 class or series of preferred stock, vacancies on the Board resulting from death, resignation, removal, disqualification, or any other cause, and newly created directorships resulting from any increase in the authorized number of directors, shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board, or by a sole remaining director, and shall not be filled by the stockholders. Any director elected to fill a vacancy shall hold office for the remainder of the full term of the class of directors in which such vacancy occurred and until such director's successor shall have been duly elected and qualified. Any director appointed to fill a newly created directorship resulting from an increase in the number of directors shall hold office for a term that shall coincide with the remaining term of the class to which such director has been assigned by the Board. No reduction in the authorized number of directors shall remove any director prior to the expiration of such director's term of office.
Section 3.6 — Removal.
Subject to the rights of the holders of any class or series of preferred stock, directors may be removed 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 the then-outstanding shares of stock of the Corporation entitled to vote in the election of directors, voting together as a single class. This removal standard is consistent with the Certificate of Incorporation and with the classified board structure set forth in Section 3.3 of these Bylaws. For purposes of this Section 3.6, "cause" shall mean (a) a conviction of a felony, (b) a declaration of unsound mind by a court of competent jurisdiction, (c) gross misconduct or neglect of duties, or (d) such other cause as may be defined in the Certificate of Incorporation.
Section 3.7 — Resignation.
Any director may resign at any time by delivering a written notice of resignation, or a notice of resignation by electronic transmission, to the Chairman of the Board, the Chief Executive Officer, or the Corporate Secretary. Such resignation shall be effective upon delivery of the notice, unless the notice specifies a later effective date or an effective date determined upon the happening of an event (in which case such resignation shall be effective at such later date or upon the happening of such event). Acceptance of such resignation shall not be necessary to make it effective, unless the resignation is conditioned upon acceptance.
Section 3.8 — Regular Meetings.
Regular meetings of the Board may be held at such times, dates, and places (within or without the State of Delaware) as the Board may from time to time determine by resolution. Notice of regular meetings need not be given if the schedule, time, date, and place (if any) of such regular meetings have been fixed by resolution of the Board. A meeting of the Board may be held without notice immediately after the annual meeting of stockholders, at the same place and at such time as the Board may fix.
Section 3.9 — Special Meetings.
Special meetings of the Board may be called at any time by the Chairman of the Board, the Chief Executive Officer, or any two (2) directors, by delivery of notice to each director. Notice of a special meeting shall state the date, time, and place (if any) of the meeting and shall be given to each director (a) at least twenty-four (24) hours before the time of the meeting if delivered personally, by telephone, or by electronic transmission (including electronic mail or facsimile), (b) at least forty-eight (48) hours before the time of the meeting if delivered by reputable overnight courier service, or (c) at least five (5) days before the time of the meeting if delivered by United States mail, postage prepaid. Unless otherwise indicated in the notice thereof, any and all business of the Corporation may be transacted at a special meeting of the Board. Notice of a special meeting need not specify the purpose of the special meeting, and the transaction of business at a special meeting shall not be limited to the purpose or purposes stated in the notice.
Section 3.10 — Quorum and Voting.
At all meetings of the Board, a majority of the total number of directors then in office shall constitute a quorum for the transaction of business. If a quorum is not present at any meeting of the Board, a majority of the directors present at such meeting may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. The act of a majority of the directors present at any meeting of the Board at which a quorum is present shall be the act of the Board, except as otherwise specifically required by the DGCL, the Certificate of Incorporation, or these Bylaws. A director of the Corporation who is present at a meeting of the Board or a committee thereof 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 such director shall file a written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the Corporate Secretary of the Corporation immediately after the adjournment of the meeting.
Section 3.11 — Action Without a Meeting.
Any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission. After an action is taken without a meeting, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the Board or the committee, as applicable. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. Such consent shall have the same force and effect as a unanimous vote of the Board or committee, as the case may be, at a duly called and held meeting.
Section 3.12 — Telephonic and Electronic Meetings.
Members of the Board, or any committee designated by the Board, may participate in a meeting of the Board or such committee by means of conference telephone, videoconference, or other communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section 3.12 shall constitute presence in person at the meeting for all purposes, including the determination of a quorum and the taking of any action.
Section 3.13 — Compensation of Directors.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the Board 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 or any committee thereof and may be paid a fixed sum for attendance at each meeting of the Board or any committee thereof and/or a stated annual retainer. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of standing or special committees may be allowed like compensation for attending committee meetings. The Board may, from time to time, adopt and amend a non-employee director compensation policy setting forth the compensation payable to non-employee directors. Directors shall also be reimbursed for all reasonable expenses incurred in connection with their service on the Board and any committee thereof.
Section 3.14 — Chairman of the Board.
The Chairman of the Board shall be elected by and from among the members of the Board. The Chairman of the Board shall preside at all meetings of the Board and at all meetings of stockholders. The Chairman of the Board shall perform such other duties and exercise such other powers as the Board may from time to time prescribe. The Chairman of the Board need not be an officer or employee of the Corporation. The initial Chairman of the Board shall be Dr. Nathaniel Rourke.
ARTICLE IV — COMMITTEES OF THE BOARD
Section 4.1 — Designation of Committees.
The Board may, by resolution passed by a majority of the whole Board, designate one or more committees of the Board, each committee to consist of one or more of the directors of the Corporation. The Board may

AMENDED AND RESTATED BYLAWS

ARBOR HEALTH TECHNOLOGIES INC.

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