BYLAWS OF PINNACLE MERGER SUB, INC.
A Delaware corporation
PREAMBLE / ADOPTION CLAUSE
These Bylaws of Pinnacle Merger Sub, Inc., a Delaware corporation (the "Corporation"), are hereby adopted effective as of the date of incorporation of the Corporation.
The Corporation was formed under the Delaware General Corporation Law, as amended from time to time (the "DGCL"), as a wholly owned subsidiary of Harrowgate Private Equity Fund IV LP for the purpose of effecting a reverse triangular merger with Pennfield Holdings, Inc. The Employer Identification Number of the Corporation is 93-4081562.
The registered office of the Corporation in the State of Delaware is located at 1200 Market Street, Suite 3100, Wilmington, Delaware 19801, and the registered agent of the Corporation at such address shall be as set forth in the Certificate of Incorporation of the Corporation, as filed with the Secretary of State of the State of Delaware.
These Bylaws are adopted by the sole incorporator of the Corporation, Jonah Whitfield, with reference to the Certificate of Incorporation of the Corporation filed with the Secretary of State of the State of Delaware. These Bylaws are intended to govern the management of the business and affairs of the Corporation and shall be interpreted in a manner consistent with the Certificate of Incorporation and the DGCL.
ARTICLE I — OFFICES
Section 1.1 — Registered Office
The registered office of the Corporation in the State of Delaware shall be at 1200 Market Street, Suite 3100, Wilmington, Delaware 19801. The registered agent of the Corporation at such address shall be the registered agent designated in the Certificate of Incorporation of the Corporation or in any amendment thereto or restatement thereof then in effect.
The registered office and/or the registered agent of the Corporation may be changed from time to time by resolution of the Board of Directors and by the filing of such certificate, statement, or other instrument as may be required by applicable law with the Secretary of State of the State of Delaware.
Section 1.2 — Other Offices
The Corporation may also have offices at such other places, both within and without the State of Delaware, as the Board of Directors may from time to time determine or as the business of the Corporation may require. The principal executive office of the Corporation, if any, may be located at such place as the Board of Directors shall designate, and the Corporation may maintain additional offices for administrative, transactional, recordkeeping, or other corporate purposes as appropriate in connection with its business and operations.
ARTICLE II — STOCKHOLDERS
Section 2.1 — Place of Meetings
Meetings of stockholders shall be held at such place, if any, either within or without the State of Delaware, as shall be designated by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
In lieu of holding a meeting at a physical place, the Board of Directors may, in its sole discretion, determine that any meeting of stockholders shall be held solely by means of remote communication to the fullest extent permitted by Section 211(a)(2) of the DGCL. If authorized by the Board of Directors, and subject to such guidelines and procedures as the Board of Directors may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication, be deemed present in person and may vote at such meeting, provided that 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, and provided further that the Corporation shall maintain a record of any vote or other action taken at such meeting by means of remote communication as required by applicable law.
Section 2.2 — Annual Meetings
An annual meeting of stockholders shall be held on such date, at such time, and at such place, if any, as shall be fixed by resolution of the Board of Directors, for the purpose of electing directors and for the transaction of such other business as may properly come before the meeting.
Failure to hold an annual meeting at the designated time shall not work a forfeiture or dissolution of the Corporation. If an annual meeting for the election of directors is not held on the date designated therefor, the directors may be elected by written consent of the stockholders entitled to vote thereon or at a special meeting of stockholders called for that purpose in accordance with these Bylaws and the DGCL.
Section 2.3 — Special Meetings
Special meetings of stockholders may be called at any time by the Board of Directors, by the Chairman of the Board, if one has been elected, or by the holders of not less than a majority of the outstanding shares of stock of the Corporation entitled to vote generally in the election of directors or on the matter or matters proposed to be acted upon at such meeting.
Any request by stockholders for the calling of a special meeting shall be in writing, shall state the purpose or purposes of the proposed meeting with reasonable specificity, and shall be delivered to the Secretary of the Corporation at the principal office of the Corporation. The business transacted at any special meeting of stockholders shall be limited to the purpose or purposes stated in the notice of meeting, and no other business shall be considered or acted upon at such meeting except as may be required by applicable law.
Section 2.4 — Notice of Meetings
Written notice of each meeting of stockholders shall be given in accordance with Section 222 of the DGCL. Such notice shall state the place, if any, date, and hour 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, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.
Unless otherwise provided by law, the Certificate of Incorporation, or these Bylaws, notice of any 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 entitled to vote at such meeting. Notice may be given personally, by mail, by courier, by electronic transmission, or by any other lawful means. 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, or when directed to the stockholder by electronic transmission in the manner permitted by the DGCL.
Section 2.5 — Waiver of Notice
Whenever notice is required to be given to any stockholder under the DGCL, the Certificate of Incorporation, or these Bylaws, a written waiver thereof, signed by the stockholder entitled to such notice, or a waiver by electronic transmission by such person, whether given before or after the meeting or action to which the notice relates, shall be deemed equivalent to notice.
Attendance of a stockholder at a meeting of stockholders shall constitute a waiver of notice of such meeting, except when the stockholder attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because 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 stockholders need be specified in any written waiver of notice unless so required by the DGCL.
Section 2.6 — Quorum
Except as otherwise provided by law, by the Certificate of Incorporation, or by these Bylaws, the holders of a majority of the outstanding shares of stock entitled to vote at a meeting of stockholders, present in person or represented by proxy, shall constitute a quorum for the transaction of business at such meeting.
If, however, a quorum shall not be present or represented at any meeting of stockholders, then the stockholders entitled to vote thereat who are present in person or represented by proxy shall have the power to adjourn the meeting from time to time to another time, date, or place, if any, without notice other than announcement at the meeting, unless notice of the adjourned meeting is required by the DGCL. At any such adjourned meeting at which a quorum shall be present or represented, any business may be transacted that might have been transacted at the original meeting.
When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any stockholder or proxy.
Section 2.7 — Voting
Except as otherwise provided in the Certificate of Incorporation or by applicable law, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder and entitled to vote on each matter submitted to a vote of stockholders.
If a vote of stockholders is required for approval of a merger or other business combination transaction, including any merger governed by Section 251 of the DGCL, the requisite vote shall be as specified by the DGCL, the Certificate of Incorporation, and any applicable governing agreement, including, where applicable, the approval of holders of a majority of the outstanding shares entitled to vote thereon.
Directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at a meeting of stockholders and entitled to vote in the election of directors, unless otherwise required by the Certificate of Incorporation or applicable law. Except as otherwise required by the DGCL, the Certificate of Incorporation, or these Bylaws, every other matter properly brought before a meeting of stockholders shall be decided by the affirmative vote of the holders 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 2.8 — 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 the DGCL.
A proxy shall be filed with the Secretary of the Corporation before or at the time of the meeting at which such proxy is to be voted. Unless otherwise provided in the proxy, no proxy shall be valid after the expiration of three (3) years from the date of its execution. A duly executed proxy shall be irrevocable only if and to the extent provided by applicable law.
Section 2.9 — Action by Written Consent
Unless otherwise provided in the Certificate of Incorporation, 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 one or more consents in writing or by electronic transmission, setting forth the action so taken, shall be signed or otherwise delivered 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, all in accordance with Section 228 of the DGCL.
Prompt notice of the taking of corporate action by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who would have been entitled to notice of the meeting if the action had been taken at a meeting of stockholders, to the extent required by the DGCL.
As of the adoption of these Bylaws, the sole stockholder of the Corporation is Harrowgate Private Equity Fund IV LP, and accordingly stockholder action by written consent is expected to be the primary mechanism for action by the stockholders of the Corporation unless and until the ownership structure of the Corporation changes.
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, to vote at any meeting of stockholders, to express consent to corporate action in writing without a meeting, to receive payment of any dividend or other distribution or allotment of any rights, or to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date.
Any 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) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action. If no record date is fixed by the Board of Directors, the record date shall be determined in accordance with the DGCL.
Section 2.11 — List of Stockholders
The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, 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 during ordinary business hours for the ten-day period before the meeting, either on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of meeting, or during ordinary business hours at the principal place of business of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected 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.
ARTICLE III — BOARD OF DIRECTORS
Section 3.1 — Powers and Number
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 the Certificate of Incorporation.
Subject to any limitations contained in the Certificate of Incorporation, the number of directors constituting the entire Board of Directors shall be fixed from time to time exclusively by resolution duly adopted by the Board of Directors or by the sole stockholder or other stockholders acting in accordance with the DGCL and these Bylaws.
The initial Board of Directors shall consist of one (1) director, namely Jonah Whitfield, who shall serve until such director's successor is duly elected and qualified or until such director's earlier resignation, removal, death, or incapacity.
Section 3.2 — Election and Term
Directors shall be elected at each annual meeting of stockholders, except as otherwise provided by law or these Bylaws, or may be elected by written consent of the stockholders if permitted by the DGCL and the Certificate of Incorporation.
Each director shall hold office until such director's successor has been duly elected and qualified or until such director's earlier resignation, removal, death, or incapacity. Directors need not be residents of the State of Delaware or stockholders of the Corporation unless so required by the Certificate of Incorporation.
Section 3.3 — Vacancies and Newly Created Directorships
Unless otherwise required by law or the Certificate of Incorporation, vacancies occurring on the Board of Directors for any reason, including by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, and newly created directorships resulting from any increase in the authorized number of directors, may be filled by a majority of the directors then in office, although less than a quorum, or by the sole remaining director, or by the sole stockholder or other stockholders entitled to vote thereon.
A director elected to fill a vacancy shall hold office for the remainder of the full term of the directorship in which the vacancy occurred and until such director's successor is duly elected and qualified, unless sooner removed or unless such director earlier resigns or dies. A director elected to fill a newly created directorship 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 — Resignation
Any director may resign at any time upon notice given in writing or by electronic transmission to the Chairman of the Board, if any, to the Corporation, or to the Board of Directors. Such resignation shall be effective upon receipt unless the notice of resignation specifies a later effective time or an effective time determined upon the happening of an event or events.
Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 3.5 — Removal
Any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors, in accordance with Section 141(k) of the DGCL and subject to any applicable provisions of the Certificate of Incorporation.
Such removal shall be effective upon the adoption of the requisite stockholder action unless a later effective time is specified therein.
Section 3.6 — Regular Meetings
Regular meetings of the Board of Directors may be held at such times and places, within or without the State of Delaware, as shall from time to time be determined by the Board of Directors. Notice of regular meetings need not be given if the date, time, and place of such meetings have been fixed by resolution of the Board of Directors.
A regular meeting of the Board of Directors may be held without notice immediately after and at the same place as the annual meeting of stockholders, or immediately following any action by written consent in lieu of an annual meeting, if the Board of Directors so determines.
Section 3.7 — Special Meetings
Special meetings of the Board of Directors may be called by the Chairman of the Board, any director, or the sole stockholder of the Corporation. The person or persons authorized to call special meetings of the Board of Directors may fix the place, if any, and time of the meeting.
Notice of any special meeting of the Board of Directors shall be given to each director at least twenty-four (24) hours before the time of the meeting if such notice is given personally, by telephone, voicemail, or by electronic transmission, and at least three (3) days before the time of the meeting if such notice is given by mail. Notice of any special meeting need not state the purpose of the meeting unless otherwise required by the DGCL, the Certificate of Incorporation, or these Bylaws.
Section 3.8 — Quorum and Voting
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, except as otherwise provided by law or these Bylaws.
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 DGCL, the Certificate of Incorporation, or these Bylaws. If a quorum shall not be present at any meeting of the Board of Directors, a majority of the directors present thereat may adjourn the meeting from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given except by announcement at the meeting at which the adjournment is taken, unless otherwise required by law.
Section 3.9 — Action by Written Consent
Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings, or electronic transmission or transmissions, are filed with the minutes of the proceedings of the Board of Directors or committee, as applicable, all in accordance with Section 141(f) of the DGCL.
Such consent shall have the same force and effect as a unanimous vote at a duly called and convened meeting.
Section 3.10 — Telephonic/Electronic Meetings
Members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of conference telephone, videoconference, or other communications equipment by means of which all persons participating in the meeting can hear each other at the same time.
Participation in a meeting pursuant to this Section shall constitute presence in person at such meeting for all purposes of these Bylaws and the DGCL.
Section 3.11 — Committees
The Board of Directors may, by resolution adopted by a majority of the entire Board of Directors, designate one or more committees, each such committee to consist of one or more directors of the Corporation. To the extent provided in the resolution or resolutions of the Board of Directors establishing any such committee, such committee shall have and may exercise the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, except to the extent prohibited or limited by Section 141(c) of the DGCL or by other applicable law.
Each committee shall keep regular minutes of its meetings and proceedings and shall report the same to the Board of Directors when required by the Board of Directors. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee, to the extent permitted by law. Each committee may adopt such rules and procedures for the conduct of its affairs as it may deem appropriate, to the extent not inconsistent with the DGCL, the Certificate of Incorporation, these Bylaws, or the resolutions of the Board of Directors designating such committee.
Section 3.12 — Compensation of Directors
Directors may receive such compensation for their services as directors, whether in the form of fixed fees, retainers, meeting fees, equity awards, or otherwise, and such reimbursement for expenses of attendance at meetings or otherwise, as may be determined from time to time by resolution of the Board of Directors.
Nothing contained in this Section shall be construed to preclude any director from serving the Corporation in any other capacity, including as an officer, employee, consultant, or agent, and receiving compensation therefor.
ARTICLE IV — OFFICERS
Section 4.1 — Officers Generally
The officers of the Corporation shall be a President, a Secretary, and a Treasurer. The Board of Directors may also elect or appoint a Chairman of the Board, one or more Vice Presidents, one or more Assistant Secretaries, one or more Assistant Treasurers, and such other officers or agents as the Board of Directors shall deem necessary or advisable for the conduct of the business of the Corporation.
Any two (2) or more offices may be held by the same person, unless otherwise prohibited by law. Officers need not be directors or stockholders of the Corporation.
Section 4.2 — Election and Term
The officers of the Corporation shall be elected or appointed by the Board of Directors at its first meeting following the formation of the Corporation, or at such other time or times thereafter as the Board of Directors may determine.
Each officer shall hold office until such officer's successor shall have been duly elected or appointed and shall have qualified, or until such officer's earlier resignation, removal, death, or incapacity.
Section 4.3 — Removal
Any officer of the Corporation may be removed, with or without cause, at any time by the Board of Directors. Any such removal shall be without prejudice to the contractual rights, if any, of the person so removed.
The election or appointment of an officer shall not of itself create contractual rights.
Section 4.4 — Resignation
Any officer may resign at any time by giving written notice to the Board of Directors, the Chairman of the Board, if any, the President, or the Secretary. Any such resignation shall be effective upon receipt unless the notice specifies a later effective date or a later effective time determined upon the happening of an event or events.
Unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective.
Section 4.5 — Vacancies
A vacancy in any office arising from any cause, including death, resignation, removal, disqualification, or otherwise, may be filled by the Board of Directors for the unexpired portion of the term and until a successor is duly elected or appointed and qualified.
Section 4.6 — Chairman of the Board
The Chairman of the Board, if one is elected, shall preside at all meetings of the Board of Directors and, unless otherwise determined by the Board of Directors, at all meetings of the stockholders.
The Chairman of the Board shall have such other powers and perform such other duties as may from time to time be assigned by the Board of Directors. The Chairman of the Board may, but need not, be an officer of the Corporation if so designated by the Board of Directors.
Section 4.7 — President
The President shall be the chief executive officer of the Corporation unless the Board of Directors designates another officer to serve as chief executive officer. Subject to the control of the Board of Directors, the President shall have general supervision, direction, and control of the business and affairs of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect.
In the absence of the Chairman of the Board, or if no Chairman of the Board has been elected, the President shall preside at all meetings of the stockholders and, unless otherwise determined by the Board of Directors, at meetings of the Board of Directors. The President shall have authority to execute bonds, mortgages, contracts, and other instruments in the name and on behalf of the Corporation, except where such authority is expressly reserved by law, by the Certificate of Incorporation, by these Bylaws, or by resolution of the Board of Directors to another officer or agent of the Corporation, and shall have such other powers and duties as may be prescribed by the Board of Directors.
Section 4.8 — Vice Presidents
Each Vice President shall have such powers and perform such duties as may be assigned by the President or by the Board of Directors. In the absence or disability of the President, the Vice President designated by the Board of Directors, or in the absence of such designation, the Vice Presidents in order of seniority or as otherwise determined by the Board of Directors, shall perform the duties and exercise the powers of the President, subject to the control of the Board of Directors.
The performance by a Vice President of the duties of the President shall not preclude the Board of Directors from conferring or limiting authority in a different manner by resolution.
Section 4.9 — Secretary
The Secretary shall attend all meetings of the stockholders and of the Board of Directors and shall record, or cause to be recorded, all proceedings thereof in the minute books of the Corporation to be kept for that purpose.
The Secretary shall give, or cause to be given, notice of all meetings of stockholders and special meetings of the Board of Directors, shall have charge of the corporate seal and shall affix or cause the same to be affixed to instruments requiring it when duly authorized, shall keep or cause to be kept a register of the stockholders of the Corporation, and shall have such other powers and perform such other duties as may be assigned by the Board of Directors or the President.
Section 4.10 — Treasurer
The Treasurer shall have custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation.
The Treasurer shall deposit, or cause to be deposited, all moneys and other valuables 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 President and to the Board of Directors, whenever they may require it, an account of all transactions as Treasurer and of the financial condition of the Corporation. The Treasurer shall have such other powers and perform such other duties as may be assigned by the Board of Directors.
Section 4.11 — Assistant Secretaries and Assistant Treasurers
Assistant Secretaries and Assistant Treasurers, if any, shall have such powers and perform such duties as shall be assigned to them by the Secretary or the Treasurer, respectively, or by the Board of Directors.
In the absence or disability of the Secretary or the Treasurer, as applicable, the Assistant Secretaries or Assistant Treasurers, in the order designated by the Board of Directors or, in the absence of such designation, as determined by the President, shall perform the duties and exercise the powers of the Secretary or the Treasurer, respectively.
ARTICLE V — STOCK
Section 5.1 — Stock Certificates; Uncertificated Shares
The shares of capital stock of the Corporation may be certificated or uncertificated, as determined by the Board of Directors and as permitted by Section 158 of the DGCL. If shares are represented by certificates, such certificates shall be in such form as the Board of Directors may approve and shall be signed by, or in the name of the Corporation by, the Chairman of the Board, the President, or a Vice President, and by the Secretary, an Assistant Secretary, the Treasurer, or an Assistant Treasurer.
Any or all of the signatures upon a certificate may be facsimile. 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, the 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.
Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send to the registered owner thereof a written notice containing the information required by applicable law.
Section 5.2 — Transfers of Stock
Transfers of stock of the Corporation shall be made only on the books of the Corporation or by the transfer agent therefor, if one has been appointed, by the holder of record thereof, in person or by duly authorized attorney, and, if such shares are certificated, upon surrender for cancellation of the certificate or certificates representing such shares, properly endorsed or accompanied by a proper instrument of transfer.
The Board of Directors may make such additional rules and regulations as it may deem expedient concerning the issue, transfer, and registration of certificates for shares of stock of the Corporation or uncertificated shares, consistent with the Certificate of Incorporation, these Bylaws, and applicable law.
Section 5.3 — Record Holders
The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise expressly provided by law.
Without limiting the foregoing, the Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares for purposes of dividends, distributions, voting, consents, notices, and all other purposes.
Section 5.4 — Lost, Stolen, or Destroyed Certificates
The Board of Directors may direct that a new certificate or uncertificated shares be issued in place of any certificate previously issued by the Corporation alleged to have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate to be lost, stolen, or destroyed.
When authorizing such issue of a new certificate or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate, or such owner's legal representative, to give the Corporation a bond, indemnity agreement, or other assurance sufficient, in the judgment of the Board of Directors, to indemnify the Corporation and any transfer agent or registrar against any claim that may be made against them on account of the alleged loss, theft, or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.
Section 5.5 — Transfer Agent and Registrar
The Board of Directors may appoint one or more transfer agents and one or more registrars with respect to the shares of capital stock of the Corporation and may require all certificates, if any, representing shares of stock to bear the signature of any such transfer agent or registrar.
If and when the Corporation's stock becomes publicly registered or the Board of Directors otherwise deems it advisable, the Board of Directors may designate a professional transfer agent, including, without limitation, Marlowe Asset Management Stock Transfer, Inc., 44 Wall Street, 6th Floor, New York, New York 10005, Attention: Daniel Roth, Vice President, Corporate Actions, or such other transfer agent and registrar as the Board of Directors may select. As of the adoption of these Bylaws, however, no transfer agent designation is required or expected to be operationally applicable because the Corporation is a wholly owned subsidiary.
ARTICLE VI — INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 6.1 — Right to Indemnification
The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL as the same now exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than permitted prior thereto), any person who was or is made or is threatened to be made a party to, or is otherwise involved in, any threatened, pending, or completed action, suit, proceeding, or investigation, whether civil, criminal, administrative, or investigative, by reason of the fact that such person is or was a director or officer of the Corporation, or while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, member, manager, trustee, fiduciary, or agent of another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, or other enterprise.
Such indemnification shall include the right to be indemnified against all expenses, liabilities, and losses actually and reasonably incurred or suffered by such person in connection therewith, including attorneys' fees, judgments, fines, excise taxes, penalties, and amounts paid in settlement, in each case to the fullest extent permitted by Section 145 of the DGCL and other applicable provisions of law.
The rights provided by this Section shall vest at the time a person first becomes or first serves in the capacity giving rise to such rights and shall be contract rights.
Section 6.2 — Advancement of Expenses
Expenses, including attorneys' fees, incurred by a director or officer of the Corporation in defending any civil, criminal, administrative, or investigative action, suit, proceeding, or investigation for which such person may be entitled to indemnification under this Article VI shall be paid by the Corporation in advance of the final disposition of such action, suit, proceeding, or investigation upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the Corporation as authorized by the DGCL and this Article VI.
The right to advancement of expenses conferred by this Section shall be mandatory and non-discretionary as to directors and officers, shall not be subject to prior approval by the Board of Directors or any committee thereof, and shall be enforceable in the same manner as the right to indemnification.
Section 6.3 — Indemnification of Employees and Agents
The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and advancement of expenses to any employee or agent of the Corporation, or any person serving at the request of the Corporation in any capacity for another enterprise, to the same extent and subject to the same conditions, or to such other extent and on such other terms and conditions, as the Board of Directors may determine, consistent with the DGCL.
Any such indemnification or advancement of expenses for employees and agents shall be discretionary rather than mandatory unless and to the extent expressly provided by resolution of the Board of Directors, contract, or other applicable undertaking of the Corporation.
Section 6.4 — Non-Exclusivity of Rights
The rights to indemnification and advancement of expenses conferred by this Article VI shall not be exclusive of any other rights that any person may have or hereafter acquire under any statute, the Certificate of Incorporation, these Bylaws, any agreement, any vote of stockholders, any resolution of disinterested directors, or otherwise.
The Corporation is specifically authorized to enter into indemnification agreements with any director, officer, employee, or agent of the Corporation and to adopt such additional procedures and policies implementing the provisions of this Article VI as the Board of Directors may deem appropriate.
Section 6.5 — Insurance
The Corporation may purchase and maintain insurance, at its expense, on behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or who is or was serving at the request of the Corporation in any such capacity for another corporation, partnership, limited liability company, joint venture, trust, employee benefit plan, or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the DGCL.
Section 6.6 — Survival of Rights
The rights to indemnification and advancement of expenses provided by, or granted pursuant to, this Article VI shall continue as to a person who has ceased to be a director, officer, employee, or agent of the Corporation and shall inure to the benefit of the heirs, executors, administrators, legal representatives, and estate of such person.
Termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person seeking indemnification or advancement of expenses did not act in good faith or in a manner which such person reasonably believed to be in or not opposed to the best interests of the Corporation, except to the extent such presumption is required by law.
Section 6.7 — Limitation on Indemnification
Notwithstanding any other provision of this Article VI, no indemnification or advancement of expenses shall be provided to any person with respect to any proceeding, or part thereof, initiated by such person, including any affirmative claim or cross-claim, other than a proceeding brought by such person to enforce rights to indemnification or advancement of expenses under this Article VI, unless the initiation of such proceeding was authorized in advance by the Board of Directors.
In addition, indemnification shall not be available to any person to the extent that a final, non-appealable adjudication establishes that such person's acts or omissions involved a breach of the duty of loyalty to the Corporation or its stockholders, were not in good faith, involved intentional misconduct or a knowing violation of law, constituted an unlawful payment of dividends or unlawful stock purchase or redemption under Section 174 of the DGCL, or resulted in such person deriving an improper personal benefit. Nothing in this Section shall be construed to limit any rights to advancement of expenses to the extent required by Section 6.2, subject to the required undertaking.
ARTICLE VII — GENERAL PROVISIONS
Section 7.1 — Dividends
Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation and the DGCL, may be declared by the Board of Directors at any regular or special meeting. Dividends may be paid in cash, in property, or in shares of the Corporation's capital stock, subject to applicable law and any restrictions contained in the Certificate of Incorporation or any agreement binding upon the Corporation.
No dividend shall be declared or paid except out of funds legally available therefor, and the Board of Directors may condition the declaration or payment of dividends upon such reserves, solvency determinations, and other considerations as it deems appropriate.
Section 7.2 — Reserves
The Board of Directors may 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, thinks proper as a reserve or reserves for any proper purpose, including working capital, contingencies, debt service, acquisitions, transaction expenses, indemnification obligations, or equalization of dividends.
The Board of Directors may abolish any such reserve in the manner in which it was created.
Section 7.3 — Checks, Drafts, and Notes
All checks, drafts, bills of exchange, or other orders for the payment of money, and all notes, bonds, debentures, or other evidences of indebtedness issued in the name of the Corporation, shall be signed, endorsed, or otherwise executed by such officer or officers, agent or agents, of the Corporation and in such manner as shall from time to time be determined by resolution of the Board of Directors.
In the absence of such determination by the Board of Directors, such instruments may be signed by the President, any Vice President, the Treasurer, or such other person as may be designated by the President consistent with authority granted by the Board of Directors.
Section 7.4 — Fiscal Year
The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
Until otherwise determined by the Board of Directors, the fiscal year of the Corporation shall be the calendar year ending on December 31.
Section 7.5 — Seal
The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization, and the word "Delaware." The form of the seal shall be subject to approval by the Board of Directors.
The seal may be used by causing it or a facsimile thereof to be impressed, affixed, or otherwise reproduced on any instrument requiring or permitting use of the corporate seal.
Section 7.6 — Books and Records
The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its stockholders, Board of Directors, and committees of the Board of Directors. The Corporation shall also keep a record of its stockholders, containing the names and addresses of all stockholders and the number and class of shares held by each.
Any of the books, records, minutes, and stock ledgers of the Corporation may be kept within or outside the State of Delaware, in such form and manner, including in electronic form, as may be determined from time to time by the Board of Directors or the officer or officers responsible therefor, provided that such records shall be capable of being converted into clearly legible paper form within a reasonable time if so required.
Section 7.7 — Electronic Transmissions
Whenever these Bylaws require or permit any notice, consent, waiver, proxy, appointment, or other document to be in writing, such requirement shall be deemed satisfied by an electronic transmission to the extent permitted by the DGCL, including Section 232 thereof, and any successor provision.
The Corporation may adopt such procedures as it deems appropriate for the use, verification, acceptance, and maintenance of electronic transmissions and electronic records in connection with corporate governance and administration.
Section 7.8 — Conflict with Certificate of Incorporation
In the event of any conflict between any provision of these Bylaws and any provision of the Certificate of Incorporation of the Corporation, the provisions of the Certificate of Incorporation shall govern and control.
Section 7.9 — Severability
If any provision of these Bylaws, or the application of any such provision to any person or circumstance, shall be held to be invalid, illegal, or unenforceable to any extent, the remainder of these Bylaws, and the application of such provision to persons or circumstances other than those as to which it is held invalid, illegal, or unenforceable, shall not be affected thereby and shall continue in full force and effect to the fullest extent permitted by law.
Section 7.10 — Construction and Defined Terms
Unless the context otherwise requires, the general provisions, rules of construction, and definitions contained in the DGCL shall govern the construction of these Bylaws.
For purposes of these Bylaws:
• "Corporation" means Pinnacle Merger Sub, Inc.
• "Board" or "Board of Directors" means the Board of Directors of the Corporation.
• "Certificate of Incorporation" means the Certificate of Incorporation of the Corporation, as the same may be amended, restated, supplemented, or otherwise modified from time to time.
Words importing the singular number shall include the plural and vice versa, words importing any gender shall include all genders, and references to statutes shall include any amendments thereto and successor provisions thereof.
ARTICLE VIII — AMENDMENTS
Section 8.1 — Amendment by Board of Directors
These Bylaws may be altered, amended, or repealed, and new bylaws may be adopted, by the Board of Directors at any regular or special meeting of the Board of Directors, subject to the power of the stockholders to alter, amend, or repeal these Bylaws and to adopt new bylaws, and subject further to any limitations contained in the Certificate of Incorporation or applicable law.
Any bylaw adopted, amended, or repealed by the Board of Directors shall be effective upon such adoption, amendment, or repeal unless a later effective time is expressly provided therein.
Section 8.2 — Amendment by Stockholders
These Bylaws may also be altered, amended, or repealed, and new bylaws may be adopted, by the affirmative vote of the holders of a majority of the outstanding shares of capital stock of the Corporation entitled to vote thereon at any annual or special meeting of stockholders duly called and noticed for that purpose.
To the fullest extent permitted by the DGCL, the stockholders may also alter, amend, or repeal these Bylaws, or adopt new bylaws, by written consent of the holders entitled to take such action in accordance with Section 228 of the DGCL.