OF CALLOWAY-BRIGGS RENEWABLES INC.
These Bylaws amend and restate in their entirety the bylaws of the Corporation previously in effect and are adopted pursuant to the Amended and Restated Certificate of Incorporation of the Corporation filed with the Secretary of State of the State of Delaware (the "Certificate of Incorporation"). These Bylaws are intended to operate in accordance with, and shall be interpreted consistently with, the Delaware General Corporation Law, as the same may be amended from time to time (the "DGCL").
Article I — Offices
Section 1.1 — Registered Office
The registered office of the Corporation in the State of Delaware shall be located at the office of Capitol Statutory Services, Inc., 1209 Orange Street, Wilmington, Delaware 19801. The registered agent of the Corporation at such address shall be Capitol Statutory Services, Inc.
Section 1.2 — Principal Office
The principal executive office of the Corporation shall be located at , unless and until changed by resolution of the Board of Directors.
The Board of Directors may at any time, and from time to time, establish, relocate, or discontinue the principal office of the Corporation as the business, operations, and administrative needs of the Corporation may require.
Section 1.3 — Other Offices
The Corporation may also maintain and operate such other offices, business locations, and places of operation, whether within or without the State of Delaware, as the Board of Directors may from time to time determine or as the business of the Corporation may require.
Article II — Meetings of Stockholders
Section 2.1 — Annual Meetings
An annual meeting of the stockholders of the Corporation shall be held on such date, at such time, and at such place, if any, within or without the State of Delaware, as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting.
At each annual meeting, the stockholders shall elect directors and transact such other business as may properly be brought before the meeting in accordance with the Certificate of Incorporation, these Bylaws, the notice of meeting, and applicable law.
Section 2.2 — Special Meetings
Special meetings of stockholders of the Corporation may be called only by (a) the Chairman of the Board, (b) the Chief Executive Officer,
Section 2.3 — Notice of Meetings
Written notice of each meeting of stockholders shall state the place, if any, date and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Notice of each meeting shall be delivered not less than ten (10) days nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting.
Notice may be given personally, by mail, If mailed, such notice shall be deemed given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder's address as it appears on the records of the Corporation.
Section 2.4 — Quorum
Except as otherwise required by law, the Certificate of Incorporation, or these Bylaws, the holders of a majority of the shares of stock issued and outstanding and entitled to vote at the meeting, present in person, or represented by proxy, shall constitute a quorum for the transaction of business at any meeting of stockholders.
If a quorum shall not be present or represented at any meeting of stockholders, the of the meeting or the holders of a majority of the present in person or represented by proxy and entitled to vote thereat may adjourn the meeting from time to time to another date, time, or place, if any, without further notice other than announcement at the meeting, except to the extent otherwise required by the DGCL.
At any adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the original meeting.
Section 2.5 — Voting
Except as otherwise provided by the Certificate of Incorporation, these Bylaws, or applicable law, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of common stock, standing in the name of such stockholder on the books of the Corporation on the applicable record date.
All other matters properly brought before any meeting of stockholders shall, unless otherwise required by the Certificate of Incorporation, these Bylaws, or applicable law, be decided by the affirmative vote of a majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter.
Section 2.6 — Proxies
Each stockholder entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy in any manner permitted by law.
Every proxy shall be filed with the Secretary of the Corporation or with such officer or agent of the Corporation as may be designated to receive proxies before or at the time of the meeting at which it is to be used.
Section 2.7 — Record Date
In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting.
If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be 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.
Section 2.8 — Action by Written Consent
Subject to the Certificate of Incorporation and applicable law, any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice, and without a vote, if a consent or consents in writing , setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.
Section 2.11 — Conduct of Meetings
Meetings of stockholders shall be presided over by the Chairman of the Board or, in the Chairman's absence, by the , or, in the absence of both, by such other person as may be designated by the Board of Directors. The Secretary of the Corporation shall act as secretary of the meeting, but in the Secretary's absence, the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Article III — Board of Directors
Section 3.1 — General Powers
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, except as may be otherwise provided by the DGCL or by the Certificate of Incorporation.
Section 3.2 — Number; Qualification; Term of Office
Subject to the rights, if any, of the holders of any series of preferred stock to elect additional directors under specified circumstances and subject further to the Certificate of Incorporation, the number of directors constituting the entire Board of Directors shall be
Each director shall hold office until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal from office.
Directors need not be stockholders of the Corporation unless so required by the Certificate of Incorporation .
Section 3.3 — Vacancies and Newly Created Directorships
Subject to the rights, if any, of the holders of any series of preferred stock , any vacancy on the Board of Directors occurring for any reason, including because of death, resignation, retirement, disqualification, removal, or otherwise, and any newly created directorship resulting from any increase in the authorized number of directors, may be filled
Any director elected to fill a vacancy shall hold office for the remainder of the full term of the and until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal.
Section 3.4 — Removal
Subject to the rights of the holders of any series of preferred stock then outstanding and except as otherwise provided by the Certificate of Incorporation, any director or the entire Board of Directors may be removed from office, with or without cause, only by the affirmative vote of the holders of at least a majority of the voting power of the then-outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
Section 3.5 — Resignation
Any director may resign at any time upon notice given in writing or by electronic transmission to the Chairman of the Board, the Chief Executive Officer, or the Secretary of the Corporation.
Such resignation shall be effective at the time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.6 — Regular Meetings
Regular meetings of the Board of Directors may be held at such times and at such places, within or without the State of Delaware, as may from time to time be determined by the Board of Directors.
Section 3.7 — Special Meetings
Special meetings of the Board of Directors may be called by the Chairman of the Board, the Chief Executive Officer.
A notice, or waiver of notice, of a meeting of the Board of Directors need not specify the purpose of the meeting unless otherwise required by the DGCL, the Certificate of Incorporation, or these Bylaws.
Section 3.8 — Quorum
Except as otherwise provided by law, the Certificate of Incorporation, or these Bylaws, a majority of the total number of directors then in office shall constitute a quorum for the transaction of business at any meeting of the Board of Directors.
If a quorum shall not be present at any meeting of the Board of Directors, a majority of the directors present may adjourn the meeting from time to time until a quorum shall be present.
The act of a majority of the directors present at any meeting at which a quorum is present shall be the act of the Board of Directors unless a greater number is required by the Certificate of Incorporation, these Bylaws, or the DGCL.
Section 3.9 — Action by Written Consent
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all members of the Board of Directors consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board of Directors.
Section 3.10 — Meetings by Telephone or Other Communications Equipment
Members of the Board of Directors, or of any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of conference telephone, by means of which all persons participating in the meeting can hear each other.
Participation in a meeting pursuant to this Section 3.10 shall constitute presence in person at such meeting.
Section 3.11 — Compensation of Directors
Unless otherwise restricted by the Certificate of Incorporation, the Board of Directors shall have the authority to fix the compensation of directors .
Article IV — Committees of the Board of Directors
Section 4.2 — Audit Committee
Section 4.3 — Compensation Committee
Section 4.4 — Nominating and Corporate Governance Committee
Section 4.5 — Committee Rules
Section 4.6 — Delegation of Authority
Article V — Officers
Section 5.1 — Officers Designated
The officers of the Corporation shall include a Chairman of the Board, a President, a Secretary, a Treasurer, and such other officers as the Board of Directors may from time to time elect or appoint.
Section 5.2 — Election and Term of Office
The officers of the Corporation shall be elected by the Board of Directors at such times and in such manner as the Board of Directors shall determine.
Each officer shall hold office until such officer's successor shall have been duly elected or appointed and qualified, or until such officer's earlier death, resignation, or removal.
Section 5.3 — Removal
Any officer of the Corporation may be removed, with or without cause, by the Board of Directors at any time.
Section 5.4 — Resignation
Any officer may resign at any time by delivering written notice to the Board of Directors, the Chairman of the Board, the Chief Executive Officer, or the Secretary of the Corporation.
Any such resignation shall take effect at the time specified therein, or if no time is specified, upon delivery thereof, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 5.5 — Vacancies
A vacancy in any office because of death, resignation, removal, disqualification, or any other cause may be filled by the Board of Directors for the unexpired portion of the term.
Section 5.6 — Chairman of the Board
The Chairman of the Board shall preside at all meetings of the Board of Directors and, except as otherwise provided in these Bylaws, at all meetings of the stockholders.
The Chairman of the Board shall perform such other duties and have such other powers as may from time to time be assigned by the Board of Directors.
Section 5.8 — President
The President shall have such duties and powers as may from time to time be prescribed by the Board of Directors or the Chief Executive Officer.
Section 5.10 — Secretary
The Secretary shall:
1. keep or cause to be kept the minutes of all meetings of the stockholders and of the Board of Directors and of committees of the Board of Directors in books or records provided for that purpose;
2. see that all notices are duly given in accordance with these Bylaws and as required by law;
3. be custodian of the corporate records and of the seal of the Corporation, if any; and
4.
The Secretary shall perform all other duties incident to the office of Secretary and such other duties as may be assigned by the Board of Directors, the Chairman of the Board, or the Chief Executive Officer.
Section 5.11 — Treasurer
The Treasurer shall have custody of all funds and securities of the Corporation, shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation, and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the Board of Directors, whenever requested, an account of all such transactions and of the financial condition of the Corporation.
Section 5.12 — Other Officers
Article VI — Stock
Section 6.1 — Certificates; Uncertificated Shares
The shares of stock of the Corporation
Every holder of certificated shares shall be entitled to a certificate representing the number of shares registered in such holder's name on the books of the Corporation. Each such certificate shall be signed by, or in the name of the Corporation by, the Chairman of the Board, the Vice Chairman of the Board, the President, or a Vice President, and by the Secretary or an Assistant Secretary, or the Treasurer or an Assistant Treasurer, certifying the number of shares owned by such holder in the Corporation.
Any or all of the signatures on a certificate may be facsimile signatures to the extent permitted by law. If any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as if such person were such officer, transfer agent, or registrar at the date of issue.
Section 6.2 — Transfers of Stock
Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation or by the transfer agent therefor, if any, by the holder of record thereof, by such holder's legal representative, or by such holder's attorney thereunto authorized by power of attorney duly executed and filed with the Secretary of the Corporation or with the transfer agent.
Transfers of certificated shares shall be made only upon the surrender of the certificate or certificates representing such shares, properly endorsed for transfer or accompanied by proper evidence of succession, assignment, or authority to transfer.
Subject to applicable law, the Certificate of Incorporation, these Bylaws, and any applicable agreement relating to transfer restrictions, the Board of Directors may make such additional rules and regulations as it may deem expedient concerning the issue, transfer, and registration of shares of stock of the Corporation.
Section 6.3 — Lost, Stolen, or Destroyed Certificates
The Corporation may issue a new certificate, in place of any certificate theretofore issued by the Corporation that is alleged to have been lost, stolen, or destroyed.
The Board of Directors may, in its discretion and as a condition precedent to the issuance of any such new certificate , require the owner of the lost, stolen, or destroyed certificate, or such owner's legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond, in such sum as the Board of Directors may direct, sufficient to indemnify the Corporation, its transfer agent, registrar, officers, and agents against any claim that may be made against any of them with respect to the certificate alleged to have been lost, stolen, or destroyed.
Section 6.4 — Record Date
In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or in order to make a determination of stockholders for any other lawful action, the Board of Directors shall fix a record date.
Such record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and shall not be more than sixty (60) days nor less than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior to any other action, including the payment of any dividend or other distribution.
Section 6.5 — Dividends
Subject to applicable law and the provisions of the Certificate of Incorporation, dividends upon the capital stock of the Corporation may be declared by the Board of Directors at any regular or special meeting of the Board of Directors and may be paid in cash, in property, or in shares of the Corporation's capital stock.
Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, to equalize dividends, to repair or maintain any property of the Corporation, or for any proper purpose of the Corporation.
Section 6.6 — Registered Stockholders
The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares of stock for all purposes, including the right to receive dividends and notices, to vote as such owner, and to hold liable for calls and assessments, if any.
The Corporation shall not be bound to recognize any equitable or other claim to or interest in any share on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.
Article VII — Indemnification and Advancement of Expenses
Section 7.1 — Right to Indemnification
Section 7.2 — Prepayment of Expenses
Section 7.3 — Claims
Section 7.4 — Non-Exclusivity of Rights
Section 7.5 — Insurance
Section 7.6 — Indemnification of Other Persons
Section 7.7 — Survival
Section 7.8 — Effect of Amendment
Article VIII — General Provisions
Section 8.2 — Fiscal Year
The fiscal year of the Corporation shall end on December 31 of each year.
Section 8.3 — Corporate Seal
The Corporation may, but need not, have a corporate seal.
If a corporate seal is adopted by the Board of Directors, the form thereof shall be determined by the Board of Directors, and the use of such seal shall not be required to validate any corporate instrument except as may be required by law.
Section 8.4 — Amendments
These Bylaws may be amended, altered, or repealed, and new bylaws may be adopted, by the Board of Directors.
The stockholders shall also have the power to amend, alter, or repeal these Bylaws, or to adopt new bylaws;
Section 8.5 — Notices
Whenever notice is required to be given under these Bylaws, the Certificate of Incorporation, or applicable law, such notice may be given in writing by mail, postage prepaid, by hand delivery, to the last address, of the stockholder, director, or other person entitled to notice as shown on the records of the Corporation.
Notice by mail shall be deemed given when deposited in the United States mail, postage prepaid. Notice by hand delivery shall be deemed given when received.
Section 8.6 — Waiver of Notice
Whenever any notice is required to be given under the provisions of these Bylaws, the Certificate of Incorporation, or applicable law, a waiver thereof in writing , signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to notice.
Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when such person attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business on the ground that the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, the Board of Directors, or a committee of the Board of Directors need be specified in any written waiver of notice unless so required by law.
Certification
CALLOWAY-BRIGGS RENEWABLES INC.
By: ________
Name: Sandra Haverford
Title: Corporate Secretary
Date: [●], 2022