The Audit Committee of the Board is comprised
of four non-employee Directors, each of whom has been determined by the Board to be “independent” under the meaning
of Rule 10A-3(b)(1) under the Exchange Act. The Board has determined, based upon an interview of Yaqing Hu and a review of Ms.
Hu’s responses to a questionnaire designed to elicit information regarding her experience in accounting and financial matters,
that Ms. Hu shall be designated as an “Audit Committee financial expert” within the meaning of Item 401(e) of SEC Regulation
S-K, as Ms. Hu has past employment experience in finance or accounting, requisite professional certification in accounting, or
any other comparable experience or background which results in her financial sophistication.
The Audit Committee assists the Board’s
oversight of the integrity of the Company’s financial reports, compliance with legal and regulatory requirements, the qualifications
and independence of the Company’s independent registered public accounting firm, the audit process, and internal controls.
The Audit Committee operates pursuant to a written charter adopted by the Board. The Audit Committee is responsible for overseeing
the corporate accounting and financing reporting practices, recommending the selection of the Company’s registered public
accounting firm, reviewing the extent of non-audit services to be performed by the auditors, and reviewing the disclosures made
in the Company’s periodic financial reports. The Audit Committee also reviews and recommends to the Board that the audited
financial statements be included in the Company’s Annual Report on Form 10-K.
Following the end of the fiscal year ended
December 31, 2017, the Audit Committee (1) reviewed and discussed the audited financial statements for the fiscal year ended December
31, 2017 with Company management; (2) discussed with the independent auditors the matters required to be discussed by PCAOB Auditing
Standard No. 1301, as may be modified or supplemented; and (3) received the written disclosures and the letter from the independent
accountants required by PCAOB Auditing Standard No. 1005 , as may be modified or supplemented, and has discussed with the independent
accountant its independence.
Based on the review and discussions referred
to above, the Audit Committee had recommended to the Board of Directors that the audited financial statements be included in the
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017 for filing with the SEC.
TMSR Holding Company Limited, a corporation
organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify that:
1. The name of the corporation
is TMSR Holding Company Limited. (the “Corporation”).
2. The Certificate of
Incorporation of the Corporation is hereby amended by replacing Section 4.01 in its entirety with following paragraph
Authorized Capital Stock. The total number
of shares of all classes of capital stock which the Corporation is authorized to issue is 220,000,000 shares, consisting of 200,000,000
shares of common stock, par value $0.0001 per share (the “Common Stock”), and 20,000,000 shares of preferred stock,
par value $0.0001 per share (the “Preferred Stock”).
3. The Certificate of
Incorporation of the Corporation is hereby amended by adding the following text as a new paragraph at the end of Article FOURTH:
“Effective as of 5:00 p.m.
EDT on ______________, 2018, each one (1) share of the issued and outstanding Common Stock, $0.0001 par value, of the Corporation
shall be forward split into two (2) shares of Common Stock of the Corporation.”
4. This Certificate
of Amendment has been duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State
of Delaware by the written consent of all of the members of the Board of Directors of the Corporation in accordance with Section
141(f) of the General Corporation Law of the State of Delaware and by the holders of a majority of the Corporation’s issued
and outstanding Common Stock at a meeting of the stockholders of the Corporation duly called and held upon notice in accordance
with Section 222 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has
caused this Certificate to be signed this ____ day of ____________, 2018.
WHEREAS, Merger Sub
was formed in the State of Nevada on March 28, 2018 as a wholly-owned subsidiary of the Company; and
WHEREAS, the board
of directors of each of the Company and Merger Sub deems it advisable and in the best interests of the Company and Merger Sub,
respectively, upon the terms and subject to the conditions herein stated, that the Company be merged with and into Merger Sub and
that Merger Sub be the surviving corporation (the “
Merger
”).
NOW, THEREFORE, in
consideration of the premises and of the agreements of the parties hereto contained herein, the parties hereto agree in accordance
with the applicable provisions of the laws of the States of Delaware and Nevada which permit such merger, as follows:
(a) each share of
the common stock of the Company issued and outstanding immediately prior thereto shall be converted into one fully paid and nonassessable
share of the common stock of Merger Sub with the same rights, powers and privileges as the shares of the common stock of the Company
so converted, and all shares of such common stock shall be cancelled and retired and shall cease to exist;
(b) all outstanding
and unexercised portions of each option, warrant and security exercisable or convertible by its terms into the common stock of
the Company (including convertible promissory notes), whether vested or unvested, which is outstanding immediately prior to the
Effective Time (each, a “
Company Stock Option
”) shall be assumed by Merger Sub and shall be deemed to
constitute an option, warrant or convertible security, as the case may be, to acquire the same number of shares of the common stock
of Merger Sub as the holder of such Company Stock Option would have been entitled to receive had such holder exercised or converted
such Company Stock Option in full immediately prior to the Effective Time (not taking into account whether such Company Stock Option
was in fact exercisable or convertible at such time), at the same exercise price per share, and shall, to the extent permitted
by law and otherwise reasonably practicable, have the same term, exercisability, vesting schedule, status and all other material
terms and conditions; and Merger Sub shall take all steps to ensure that a sufficient number of shares of its common stock is reserved
for the exercise of such Company Stock Options; and
(c) each share of
the common stock of Merger Sub owned by the Company shall no longer be outstanding and shall be cancelled and retired and shall
cease to exist.
IN WITNESS WHEREOF,
this Agreement and Plan of Merger has been duly executed and delivered by the duly authorized officers of the parties hereto as
of the date first written above.
USE BLACK INK ONLY - DO NOT HIGHLIGHT
|
ABOVE SPACE IS FOR OFFICE USE ONLY
|
1. Name of Corporation:
|
TMSR Holding Company Limited
|
2. Registered Agent for Service of Process:
(check only one box)
|
☒ Commercial Registered Agent: Vcorp Services, LLC
|
|
Name
|
|
☐ Noncommercial Registered Agent
|
OR
|
☐ Office or Position with Entity
|
(name and address below)
|
|
(name and address below)
|
|
|
|
|
Name of Noncommercial Registered Agent OR Name of Title of Office or Other Position with Entity
|
|
|
|
Nevada
|
|
Street Address
|
City
|
Zip Code
|
|
|
|
Nevada
|
|
Mailing Address (if different from street address)
|
City
|
Zip Code
|
3. Authorized Stock:
(number of shares corporation is authorized to issue)
|
Number of shares with par value:
|
110,000,000
|
par value per share:
|
$ 0.0001
|
Number of
shares without
value par value:
|
4. Names and Addresses of the Board of Directors/Trustees:
(each Director/Trustee must be a natural person at least 18 years of age; attach additional page if more than two directors/ trustees)
|
1) Jiazhen Li
|
|
|
|
Name
|
|
|
|
|
|
|
|
No.21 Jiefang Avenue, Qiaokou District
|
Wuhan, Hubei
|
CN
|
|
Street Address
|
City
|
State
|
Zip Code
|
2)
|
|
|
|
Name
|
|
|
|
|
|
|
|
Street Address
|
City
|
State
|
Zip Code
|
5. Purpose:
(optional; required only if Benefit Corporation status selected)
|
The purpose of the corporation shall be:
|
6. Benefit Corporation:
(see instructions)
|
☐ Yes
|
7. Name, Address and Signature of Incorporator:
(attach additional page if more than one incorporator)
|
I declare, to the best of my knowledge under penalty of perjury, that the information contained herein is correct and acknowledge that pursuant to NRS 239,330, it is a category C felony to knowingly offer any false or forged instrument for filing in the Office of the Secretary of State.
|
|
Zixuan Liu, Esq.
|
/s/ Zixuan Liu, Esq.
|
Name
|
Incorporator Signature
|
|
1450 Broadway
|
New York
|
NY
|
10018
|
|
Address
|
City
|
State
|
Zip Code
|
8. Certificate of Acceptance of Appointment of Registered Agent:
|
I hereby accept appointment as Registered Agent for the above named Entity. if the registered agent is unable to sign the Articles of Incorporation, submit a separate signed Registered Agent Acceptance form.
|
|
X
|
3/28/2018
|
|
Authorized Signature of Registered Agent or On Behalf of Registered Agent Entity
|
Date
|
Nevada Secretary of State NRS 78 Articles
This form must be accompanied by appropriate fees.
ATTACHMENT TO
ARTICLES OF INCORPORATION
OF
TMSR HOLDING COMPANY LIMITED
This Articles of Incorporation of TMSR
Holding Company Limited (the “Corporation”) are hereby supplemented with following additions to Articles 3 and additional
Articles 8-12.
ARTICLE 3 – AUTHORIZED STOCK
The aggregate number of shares which the
Corporation shall have the authority to issue is 200,000,000 shares of Common Stock, $0.0001 par value per share, and 20,000,000
shares of Preferred Stock, $0.0001 par value per share. All Common Stock of the Corporation shall be of the same class and shall
have the same rights and preferences. The Corporation shall be of the same class and shall have the same rights and preferences.
The Corporation shall have authority to issue the shares of Preferred Stock in one or more series with such rights, preferences
and designations as determined by the Board of Directors from time to time to issue Preferred Stock in one or more series, and
in connection with the creation of any such series, by resolution or resolutions providing for the issue of the shares thereof,
to determine and fix such voting powers, full or limited, or no voting powers, and such designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including, without limitation
thereof, dividend rights, special voting rights, conversion rights, redemption privileges and liquidation preferences, as shall
be stated and expressed in such resolutions, all to the full extent now or hereafter permitted by the Nevada Revised Statutes.
ARTICLE 8 – AMENDMENT OF BYLAWS
The Board of Directors of the Corporation
shall have the power to make, alter, amend or repeal the Bylaws of the Corporation, except to the extent that the Bylaws otherwise
provide.
ARTICLE 9 – INDEMNIFCATION OF OFFICERS
AND DIRECTORS
The Corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, 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 who is or was serving at the request of the Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise, against expenses, including attorney’s fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with the action, suit or proceeding, to the full extent
permitted by the Nevada Revised Statues as such statutes may be amended from time to time.
ARTICLE 10 – LIABILITY OF DIRECTORS
AND OFFICERS
No director or officer shall be personally
liable to the Corporation or any of its stockholders for damages for any breach of fiduciary duty as a director or officer,
provided
,
however
, that the foregoing provision shall not eliminate or limit the liability of a director or officer (i) for acts or
omissions which involve international misconduct, fraud or a knowing violation of law, or (ii) for the payment of dividends in
violation of Section 78.300 of the Nevada Revised Statutes. Any repeal or modification of this Article 10 by the stockholders of
the Corporation shall be prospective only, and shall not adversely affect any limitation of the personal liability of a director
or officer of the Corporation for acts or omissions prior to such repeal or modification.
ARTICLE 11 – ACQUISITION OF CONTROLLING
INTEREST
The Corporation elects not to be governed
by the terms and provisions of Sections 78.378 through 78.3793, inclusive, of the Nevada Revised Statutes, as the same may be amended,
superseded, or replaced by a successor section, statute, or provision. No amendment to these Articles of Incorporation, directly
or indirectly, by merger or consolidation or otherwise, having the effect of amending or repealing any provision of this Article
11 shall apply to or have any effect on any transaction involving acquisition of control by any person occurring prior to such
amendment or repeal.
ARTICLE 12 – COMBINATIONS WITH INTERESTED
STOCKHOLDERS
The Corporation elects not to be governed
by the terms and provisions of Section 78.411 through 78.444, inclusive, of the Nevada Revised Statutes, as the same may be amended,
superseded, or replaced by any successor section, statute, or provision. No amendment to these Articles of Incorporation, directly
or indirectly, by merger or consolidation or otherwise, having the effect of amending or repealing any provision of this Article
12 shall apply to or have any effect on any transaction with an interested stockholder occurring prior to such amendment or repeal.
APPENDIX E
BYLAWS
OF
TMSR HOLDING COMPANY LIMITED
(the “Corporation”)
Adopted on ___, 2018
ARTICLE I
OFFICES
1.1
Registered
Office
. The registered office and registered agent of the Corporation shall be as from time to time set forth in the Corporation’s
Articles of Incorporation.
1.2
Other Offices
.
The Corporation may also have offices at such other places, both within and without the State of Nevada, as the Board of Directors
may from time to time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
2.1
Place of
Meetings
. All meetings of the stockholders for the election of Directors shall be held at such place, within or without the
State of Nevada, as may be fixed from time to time by the Board of Directors. Meetings of stockholders for any other purpose may
be held at such time and place, within or without the State of Nevada, as shall be stated in the notice of the meeting or in a
duly executed waiver of notice thereof.
2.2
Annual
Meeting
. An annual meeting of the stockholders shall be held at such time as may be determined by the Board of Directors, at
which meeting the stockholders shall elect a Board of Directors and transact such other business as may properly be brought before
the meeting.
2.3
Special
Meetings
. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by law, by the Articles
of Incorporation or by these Bylaws, may be called by the Chief Executive Officer or the President, or shall be called by the President
or Secretary at the request in writing of a majority of the Board of Directors or at the request in writing of the holders of a
majority
of all the shares issued, outstanding and entitled to vote. Such request shall state the purpose or purposes
of the proposed meeting. Business transacted at all special meetings shall be confined to the purposes stated in the notice of
the meeting unless all stockholders entitled to vote are present and consent.
2.4
Notice
.
Written or printed notice stating the place, day and hour of any meeting of the stockholders and, in case of a special meeting,
the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than sixty days before the
date of the meeting, either personally or by mail, by or at the direction of the Chief Executive Officer, the President, the Secretary,
or the officer or person calling the meeting, to each stockholder of record entitled to vote at the meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the mail, addressed to the stockholder at his address as it appears on the stock
transfer books and records of the Corporation or its transfer agent, with postage thereon prepaid.
2.5
List of
Stockholders
. At least ten days before each meeting of stockholders, a complete list of the stockholders entitled to vote at
such meeting, arranged in alphabetical order, with the address of and the number of voting shares registered in the name of each,
shall be prepared by the officer or agent having charge of the stock transfer books. Such list shall be kept on file at the registered
office of the Corporation (or at such other location determined by the Board of Directors) for a period of ten days prior to such
meeting and shall be subject to inspection by any stockholder at any time during usual business hours. Such list shall be produced
and kept open at the time and place of the meeting during the whole time thereof, and shall be subject to the inspection of any
stockholder who may be present.
2.6
Quorum
.
At all meetings of the stockholders, the presence in person or by proxy of the holders of one-third (1/3
rd
) of the shares
issued and outstanding and entitled to vote shall be necessary and sufficient to constitute a quorum for the transaction of business
except as otherwise provided by law, by the Articles of Incorporation or by these Bylaws. If, however, such quorum shall not be
present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented
by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until
a quorum shall be present or represented. If the adjournment is for more than thirty days, or if after the adjournment a new record
date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally notified.
2.7
Voting
.
When a quorum is present at any meeting of the Corporation’s stockholders, the vote of the holders of a majority of the shares
having voting power present in person or represented by proxy at such meeting shall decide any questions brought before such meeting,
unless the question is one upon which, by express provision of law, the Articles of Incorporation or these Bylaws, a different
vote is required, in which case such express provision shall govern and control the decision of such question. The stockholders
present at a duly organized meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum.
2.8
Method
of Voting
. Each outstanding share of the Corporation’s capital stock shall be entitled to one vote on each matter submitted
to a vote at a meeting of stockholders, except to the extent that the voting rights of the shares of any class or classes are otherwise
provided by applicable law or the Articles of Incorporation, as amended from time to time. At any meeting of the stockholders,
every stockholder having the right to vote shall be entitled to vote in person or by proxy appointed by an instrument in writing
subscribed by such stockholder or by his duly authorized attorney-in-fact and bearing a date not more than six months prior to
such meeting, unless such instrument provides for a longer period. Each proxy shall be revocable unless expressly provided therein
to be irrevocable and if, and only so long as, it is coupled with an interest sufficient in law to support an irrevocable power.
Such proxy shall be filed with the Secretary of the Corporation prior to or at the time of the meeting. Voting for directors shall
be in accordance with Article III of these Bylaws. Voting on any question or in any election may be by voice vote or show of hands
unless the presiding officer shall order or any stockholder shall demand that voting be by written ballot.
2.9
Record
Date; Closing Transfer Books
. The Board of Directors may fix in advance a record date for the purpose of determining stockholders
entitled to notice of or to vote at a meeting of stockholders, such record date to be not less than ten nor more than sixty days
prior to such meeting, or the Board of Directors may close the stock transfer books for such purpose for a period of not less than
ten nor more than sixty days prior to such meeting. In the absence of any action by the Board of Directors, the date upon which
the notice of the meeting is mailed shall be the record date.
2.10
Action
By Consent
. Any action required or permitted by law, the Articles of Incorporation, or these Bylaws to be taken at a meeting
of the stockholders of the Corporation may be taken without a meeting if a consent or consents in writing, setting forth the action
so taken, shall be signed by stockholders holding at least a majority of the voting power; provided that if a different proportion
of voting power is required for such an action at a meeting, then that proportion of written consents is required. Such signed
consents shall be delivered to the Secretary for inclusion in the Minute Book of the Corporation.
ARTICLE III
BOARD OF DIRECTORS
3.1
Management
.
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, who may exercise
all such powers of the Corporation and do all such lawful acts and things as are not by law, the Articles of Incorporation, a stockholders’
agreement or these Bylaws directed or required to be exercised or done by the stockholders.
3.2
Qualification;
Election; Term
. None of the directors need be a stockholder of the Corporation or a resident of the State of Nevada. The directors
shall be elected by plurality vote at the annual meeting of the stockholders, except as hereinafter provided, and each director
elected shall hold office until his successor shall be elected and qualified.
3.3
Number
.
The initial number of directors of the Corporation shall be one (1). Thereafter, the number of directors of the Corporation shall
be fixed as the Board of Directors may from time to time designate. No decrease in the number of directors shall have the effect
of shortening the term of any incumbent director.
3.4
Removal
.
Any director may be removed either for or without cause at any special meeting of stockholders by the affirmative vote of at least
two-thirds of the voting power of the issued and outstanding stock entitled to vote; provided, however, that notice of intention
to act upon such matter shall have been given in the notice calling such meeting.
3.5
Vacancies
.
Any vacancy occurring in the Board of Directors by death, resignation, removal or otherwise may be filled by an affirmative vote
of at least a majority of the remaining directors though less than a quorum of the Board of Directors. A director elected to fill
a vacancy shall be elected for the unexpired term of his predecessor in office. A directorship to be filled by reason of an increase
in the number of directors may be filled by the Board of Directors for a term of office only until the next election of one or
more directors by the stockholders.
3.6
Place of
Meetings
. Meetings of the Board of Directors, regular or special, may be held at such place within or without the State of
Nevada as may be fixed from time to time by the Board of Directors.
3.7
Annual
Meeting
. The first meeting of each newly elected Board of Directors shall be held without further notice immediately following
the annual meeting of stockholders and at the same place, unless by unanimous consent or unless the directors then elected and
serving shall change such time or place.
3.8
Regular
Meetings
. Regular meetings of the Board of Directors may be held without notice at such time and place as shall from time to
time be determined by resolution of the Board of Directors.
3.9
Special
Meetings
. Special meetings of the Board of Directors may be called by the Chief Executive Officer or President on oral or written
notice to each director, given either personally, by telephone, by telegram, by mail, by facsimile or by e-mail at least forty-eight
hours prior to the time of the meeting. Special meetings shall be called by the Chief Executive Officer, the President or the Secretary
in like manner and on like notice on the written request of two-thirds of directors. Except as may be otherwise expressly provided
by law, the Articles of Incorporation or these Bylaws, neither the business to be transacted at, nor the purpose of, any special
meeting need to be specified in a notice or waiver of notice.
3.10
Quorum
and Voting
. At all meetings of the Board of Directors the presence of a majority of the number of directors shall be necessary
and sufficient to constitute a quorum for the transaction of business, and the affirmative vote of at least a majority of the directors
present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically
provided by law, the Articles of Incorporation or these Bylaws. If a quorum shall not be present at any meeting of directors, the
directors present thereat may adjourn the meeting from time to time without notice other than announcement at the meeting, until
a quorum shall be present.
3.11
Interested
Directors
. No contract or transaction between the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or
officers are directors or officers or have a financial interest, shall be void or voidable solely for this reason, solely because
the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes
the contract or transaction, or solely because his or their votes are counted for such purpose, if: (1) the fact as to his relationship
or interest and as to the contract or transaction is known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors,
even though the disinterested directors be less than a quorum; or (2) the fact as to his relationship or interest and as to the
contract or transaction is known to the stockholders entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or (3) the contract or transaction is fair as to the Corporation as of the
time it is authorized, approved, or ratified by the Board of Directors, a committee thereof, or the stockholders. Common or interested
directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
3.12
Action
by Consent
. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without such
a meeting if a consent or consents in writing, setting forth the action so taken, is signed by all the members of the Board of
Directors.
3.13
Compensation
of Directors
. Directors shall receive such compensation for their services, and reimbursement for their expenses as the Board
of Directors, by resolution, shall establish; provided that nothing herein contained shall be construed to preclude any director
from serving the Corporation in any other capacity and receiving compensation therefor.
ARTICLE IV
COMMITTEES
4.1
Designation
.
The Board of Directors may, by resolution passed by a majority of the whole Board, designate committees, each committee to consist
of one or more directors of the Corporation, which committees shall have such power and authority and shall perform such functions
as may be provided in such resolution.
4.2
Authority
.
Each committee, to the extent provided in such resolution, shall have and may exercise all of the authority of the Board of Directors
in the management of the business and affairs of the Corporation, except where action of the full Board of Directors is required
by statute or by the Articles of Incorporation.
4.3
Change
in Number
. The number of committee members may be increased or decreased (but not below one) from time to time by resolution
adopted by a majority of the whole Board of Directors.
4.4
Removal
.
Any committee member may be removed by the Board of Directors by the affirmative vote of a majority of the whole Board, whenever
in its judgment the best interests of the Corporation will be served thereby.
4.5
Vacancies
.
A vacancy occurring in any committee (by death, resignation, removal or otherwise) may be filled by the Board of Directors in the
manner provided for original designation in Section 4.1.
4.6
Meetings
.
The time, place and notice (if any) of all committee meetings shall be determined by the respective committee. Unless otherwise
determined by a particular committee, meetings of the committees may be called by the Chief Executive Officer or President on oral
or written notice to each member, given either personally, by telephone, by telegram, by mail, by facsimile or by e-mail at least
forty-eight hours prior to the time of the meeting and special meetings shall be called by the Chief Executive Officer, the President
or the Secretary in like manner and on like notice on the written request of any committee member. Neither the business to be transacted
at, nor the purpose of, any meeting need be specified in a notice or waiver of notice of any meeting.
4.7
Quorum;
Majority Vote
. Unless otherwise determined by a particular committee, at any meeting a majority of the committee members shall
constitute a quorum for the transaction of business and the act of a majority of the members present at any meeting at which a
quorum is present shall be the act of the committee, except as otherwise specifically provided by statute or by the Articles of
Incorporation or by these Bylaws. If a quorum is not present at a meeting of the committee, the members present thereat may adjourn
the meeting from time to time, without notice other than an announcement at the meeting until a quorum is present.
4.8
Action
by Consent
. Any action required or permitted to be taken at any committee meeting may be taken without such a meeting if a
consent or consents in writing, setting forth the action so taken, is signed by all the members of such committee.
4.9
Compensation
.
Compensation of committee members shall be fixed pursuant to the provisions of Section 3.13.
ARTICLE V
NOTICE
5.1
Form of
Notice
. Whenever required by law, the Articles of Incorporation or these Bylaws, notice is to be given to any director or stockholder,
and no provision is made as to how such notice shall be given, such notice may be given: (a) in writing, by mail, postage prepaid,
addressed to such director or stockholder at such address as appears on the books and records of the Corporation or its transfer
agent; or (b) in any other method permitted by law. Any notice required or permitted to be given by mail shall be deemed to be
given at the time when the same shall be deposited in the United States mail.
5.2
Waiver
.
Whenever any notice is required to be given to any stockholder or director of the Corporation as required by law, the Articles
of Incorporation or these Bylaws, a waiver thereof in writing signed by the person or persons entitled to such notice, whether
before or after the time stated in such notice, shall be equivalent to the giving of such notice. Attendance of a stockholder or
director at a meeting shall constitute a waiver of notice of such meeting, except where such stockholder or director attends for
the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
ARTICLE VI
OFFICERS AND AGENTS
6.1
In General
.
The officers of the Corporation shall be elected by the Board of Directors and shall be a Chairman of the Board of Directors, a
President, a Treasurer and a Secretary. The Board of Directors may also elect a Chairman of the Board, a Chief Executive Officer,
a Chief Operating Officer, a Chief Financial Officer, and one or more Vice Presidents, Assistant Vice Presidents, Assistant Secretaries
and Assistant Treasurers. None of the officers need be a member of the Board of Directors. Any two or more offices may be held
by the same person.
6.2
Election
.
The Board of Directors, at its first meeting after each annual meeting of stockholders, shall elect a President, a Treasurer, a
Secretary and such other officers and agents as it shall deem necessary, who shall be elected and appointed for such terms and
shall exercise such powers and perform such duties as shall be determined from time to time by the Board.
6.3
Salaries
.
The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors or any committee of the Board,
if so authorized by the Board.
6.4
Term of
Office and Removal
. Each officer of the Corporation shall hold office until his death, or his resignation or removal from office,
or the election and qualification of his successor, whichever shall first occur. Any officer or agent elected or appointed by the
Board of Directors may be removed at any time, for or without cause, by the affirmative vote of a majority of the whole Board of
Directors, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. If the office
of any officer becomes vacant for any reason, the vacancy may be filled by the Board of Directors.
6.5
Employment
and Other Contracts
. The Board of Directors may authorize any officer or officers or agent or agents to enter into any contract
or execute and deliver any instrument in the name or on behalf of the Corporation, and such authority may be general or confined
to specific instances. The Board of Directors may, when it believes the interest of the Corporation will best be served thereby,
authorize executive employment contracts which will contain such terms and conditions as the Board of Directors deems appropriate.
6.6
Chairman
of the Board
. The Chairman of the Board, subject to the direction of the Board of Directors, shall perform such executive,
supervisory and management functions and duties as from time to time may be assigned to him or her by the Board of Directors. The
Chairman of the Board shall preside at all meetings of the stockholders of the Corporation and all meetings of the Board of Directors.
6.7
Chief Executive
Officer
. The Chief Executive Officer shall have general and active management of the business of the Corporation and shall
see that all orders and resolutions of the Board of Directors are carried into effect. The Chief Executive Officer shall preside
at all meetings of the stockholders of the Corporation and all meetings of the Board of Directors in the absence of the Chairman
of the Board.
6.8
President
.
The President shall be subject to the direction of the Board of Directors and the Chief Executive Officer and shall have general
charge of the business, affairs and property of the Corporation and general supervision over its other officers and agents. The
President shall see that the officers carry all other orders and resolutions of the Board of Directors into effect. The President
shall execute all authorized conveyances, contracts, or other obligations in the name of the Corporation except where required
by law to be otherwise signed and executed and except where the signing and execution shall be expressly delegated by the Board
of Directors to some other officer or agent of the Corporation or reserved to the Board of Directors or any committee thereof.
The President shall preside at all meetings of the stockholders of the Corporation and all meetings of the Board of Directors in
the absence of the Chairman of the Board and the Chief Executive Officer. The President shall perform all duties incident to the
office of the President and such other duties as may be prescribed by the Board of Directors from time to time.
6.9
Chief Operating
Officer
. The Chief Operating Officer shall be subject to the direction of the Chief Executive Officer, the President and the
Board of Directors and shall have day-to-day managerial responsibility for the operation of the Corporation.
6.10
Chief
Financial Officer
. The Chief Financial Officer shall be subject to the direction of the Chief Executive Officer, the President
and the Board of Directors and shall have day-to-day managerial responsibility for the finances of the Corporation.
6.11
Vice Presidents
.
Each Vice President shall have such powers and perform such duties as the Board of Directors or any committee thereof may from
time to time prescribe, or as the President may from time to time delegate to him. In the absence or disability of the President,
any Vice President may perform the duties and exercise the powers of the President.
6.12
Secretary
.
The Secretary shall attend all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to
be kept for that purpose. The Secretary shall perform like duties for the Board of Directors when required. He shall give, or cause
to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors and shall perform such other
duties as may be prescribed by the Board of Directors under whose supervision he shall be. He shall keep in safe custody the seal
of the Corporation. He shall be under the supervision of the President. He shall perform such other duties and have such other
authority and powers as the Board of Directors may from time to time prescribe or as the President may from time to time delegate.
6.13
Assistant
Secretaries
. Each Assistant Secretary shall have such powers and perform such duties as the Board of Directors may from time
to time prescribe or as the President may from time to time delegate to him.
6.14
Treasurer
.
The Treasurer shall have the custody of all corporate funds and securities, shall keep full and accurate accounts of receipts and
disbursements of the Corporation, and shall deposit all moneys and other valuable effects in the name and to the credit of the
Corporation in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Corporation
as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, shall render to the Directors, at the
regular meetings of the Board of Directors, or whenever they may require it, an account of all his transactions as Treasurer and
of the financial condition of the Corporation, and shall perform such other duties as the Board of Directors may prescribe or the
President may from time to time delegate.
6.15
Assistant
Treasurers
. Each Assistant Treasurer shall have such powers and perform such duties as the Board of Directors may from time
to time prescribe or as the President may from time to time delegate to him.
6.16
Bonding
.
If required by the Board of Directors, all or certain of the officers shall give the Corporation a bond, in such form, in such
sum, and with such surety or sureties as shall be satisfactory to the Board of Directors, for the faithful performance of the duties
of their office and for the restoration to the Corporation, in case of their death, resignation, retirement or removal from office,
of all books, papers, vouchers, money and other property of whatever kind in their possession or under their control belonging
to the Corporation.
ARTICLE VII
CERTIFICATES OF SHARES
7.1
Form of
Certificates
. The Corporation may, but is not required to, deliver to each stockholder a certificate or certificates, in such
form as may be determined by the Board of Directors, representing shares to which the stockholder is entitled. Such certificates
shall be consecutively numbered and shall be registered on the books and records the Corporation or its transfer agent as they
are issued. Each certificate shall state on the face thereof the holder’s name, the number, class of shares, and the par
value of such shares or a statement that such shares are without par value.
7.2
Shares
without Certificates
. The Board of Directors may authorize the issuance of uncertificated shares of some or all of the shares
of any or all of its classes or series. The issuance of uncertificated shares has no effect on existing certificates for shares
until surrendered to the Corporation, or on the respective rights and obligations of the stockholders. Unless otherwise provided
by the Nevada Revised Statutes, the rights and obligations of stockholders are identical whether or not their shares of stock are
represented by certificates. Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation
shall send the stockholder a written statement containing the information required on the certificates pursuant to Section 7.1.
At least annually thereafter, the Corporation shall provide to its stockholders of record, a written statement confirming the information
contained in the informational statement previously sent pursuant to this Section.
7.3
Lost Certificates
.
The Board of Directors may direct that a new certificate be issued, or that uncertificated shares be issued, in place of any certificate
theretofore issued by the Corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate to be lost or destroyed. When authorizing such issue of a new certificate or uncertificated shares,
the Board of Directors, in its discretion and as a condition precedent to the issuance thereof, may require the owner of such lost
or destroyed certificate, or his legal representative, to advertise the same in such manner as it shall require and/or to give
the Corporation a bond, in such form, in such sum, and with such surety or sureties as it may direct as indemnity against any claim
that may be made against the Corporation with respect to the certificate alleged to have been lost or destroyed. When a certificate
has been lost, apparently destroyed or wrongfully taken, and the holder of record fails to notify the Corporation within a reasonable
time after he has notice of it, and the Corporation registers a transfer of the shares represented by the certificate before receiving
such notification, the holder of record is precluded from making any claim against the Corporation for the transfer or a new certificate
or uncertificated shares.
7.4
Transfer
of Shares
. Shares of stock shall be transferable only on the books of the Corporation or its transfer agent by the holder thereof
in person or by his duly authorized attorney. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate
representing shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall
be the duty of the Corporation or the transfer agent of the Corporation to issue a new certificate to the person entitled thereto,
cancel the old certificate and record the transaction upon its books.
7.5
Registered
Stockholders
. 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 provided
by law.
ARTICLE VIII
GENERAL PROVISIONS
8.1
Dividends
.
Dividends upon the outstanding shares of the Corporation, subject to the provisions of the Articles of Incorporation, if any, may
be declared by the Board of Directors at any regular or special meeting. Dividends may be declared and paid in cash, in property,
or in shares of the Corporation, subject to the provisions of the Nevada Revised Statutes and the Articles of Incorporation. The
Board of Directors may fix in advance a record date for the purpose of determining stockholders entitled to receive payment of
any dividend, such record date to be not more than sixty days prior to the payment date of such dividend, or the Board of Directors
may close the stock transfer books for such purpose for a period of not more than sixty days prior to the payment date of such
dividend. In the absence of any action by the Board of Directors, the date upon which the Board of Directors adopts the resolution
declaring such dividend shall be the record date.
8.2
Reserves
.
There may be created by resolution of the Board of Directors out of the surplus of the Corporation such reserve or reserves as
the directors from time to time, in their discretion, think proper to provide for contingencies, or to equalize dividends, or to
repair or maintain any property of the Corporation, or for such other purpose as the directors shall think beneficial to the Corporation,
and the directors may modify or abolish any such reserve in the manner in which it was created. Surplus of the Corporation to the
extent so reserved shall not be available for the payment of dividends or other distributions by the Corporation.
8.3
Telephone
and Similar Meetings
. Stockholders, directors and committee members may participate in and hold a meeting by means of conference
telephone or similar communications equipment by which all persons participating in the meeting can hear each other. Participation
in such a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the
express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
8.4
Books and
Records
. The Corporation shall keep correct and complete books and records of account and minutes of the proceedings of its
stockholders and Board of Directors, and shall keep at its registered office or principal place of business, or at the office of
its transfer agent or registrar, a record of its stockholders, giving the names and addresses of all stockholders and the number
and class of the shares held by each.
8.5
Checks
and Notes
. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time designate.
8.6
Loans
.
No loans shall be contracted on behalf of the Corporation and no evidence of indebtedness shall be issued in its name unless authorized
by a resolution of the Board of Directors. Such authority may be general or confined to specific instances.
8.7
Fiscal
Year
. The fiscal year of the Company shall be fixed by resolution of the Board of Directors.
8.8
Seal
.
The Corporation may have a seal, and such seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced
or otherwise. Any officer of the Corporation shall have authority to affix the seal to any document requiring it.
8.9
Indemnification
.
The Corporation shall indemnify its directors and officers to the fullest extent permitted by the Nevada Revised Statutes and may,
if and to the extent authorized by the Board of Directors, so indemnify any other person whom it has the power to indemnify against
liability, reasonable expense or other matter whatsoever.
8.10
Insurance
.
The Corporation may at the discretion of the Board of Directors purchase and maintain insurance on behalf of any person who holds
or who has held any position identified in Section 8.9 against any and all liability incurred by such person in any such position
or arising out of his status as such.
8.11
Resignation
.
Any director, officer or agent may resign by giving written notice to the President or the Secretary. Such resignation shall take
effect at the time specified therein or immediately if no time is specified therein. Unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
8.12
Off-Shore
Offerings
. In all offerings of securities pursuant to Regulation S of the Securities Act of 1933, as amended (the “Act”),
the Corporation shall require that its stock transfer agent refuse to register any transfer of securities not made in accordance
with the provisions of Regulation S, pursuant to registration under the Act or an available exemption thereunder.
8.13
Amendment
of Bylaws
. The Board of Directors shall have power to amend, modify or repeal these Bylaws, or adopt any new provision.
8.14
Invalid
Provisions
. If any part of these Bylaws shall be held invalid or inoperative for any reason, the remaining parts, so far as
possible and reasonable, shall be valid and operative.
8.15
Relation
to Articles of Incorporation
. These Bylaws are subject to, and governed by, the Articles of Incorporation.
APPENDIX F
CURRENT CERTIFICATE OF INCORPORATION
OF THE COMPANY
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
TMSR HOLDING COMPANY LIMITED
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
JM GLOBAL HOLDING COMPANY
JM Global Holding Company,
a corporation organized and existing under the laws of the State of Delaware (the “
Corporation
”), DOES
HEREBY CERTIFY AS FOLLOWS:
|
1.
|
The name of the Corporation is “JM Global Holding Company”. The original certificate of incorporation was filed with the Secretary of State of the State of Delaware on April 10, 2015 (the “
Original Certificate
”).
|
|
2.
|
This Second Amended and Restated Certificate of Incorporation (the “
Second Amended and Restated Certificate
”) was duly adopted by the Board of Directors of the Corporation (the “
Board
”) and the stockholders of the Corporation in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware.
|
|
3.
|
This Second Amended and Restated Certificate amends and restates the provisions of the Original Certificate.
|
|
4.
|
Certain capitalized terms used in this Second Amended and Restated Certificate are defined where appropriate herein.
|
|
5.
|
The text of the Original Certificate is hereby restated and amended in its entirety to read as follows:
|
Article I. NAME
The name of the corporation is TMSR Holding
Company Limited.
Article II. PURPOSE
The purpose of the Corporation
is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State
of Delaware (the “
DGCL
”). In addition to the powers and privileges conferred upon the Corporation by
law and those incidental thereto, the Corporation shall possess and may exercise all the powers and privileges that are necessary
or convenient to the conduct, promotion or attainment of the business or purposes of the Corporation including, but not limited
to, effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination
with one or more businesses (a “
Business Combination
”).
Article III. REGISTERED AGENT
The address of the registered
office of the Corporation in the State of Delaware is 251 Little Falls Drive, City of Wilmington, County of New Castle, State of
Delaware 19808, and the name of the Corporation’s registered agent at such address is Corporation Service Company.
Article IV. CAPITALIZATION
Section 4.01
Authorized
Capital Stock
. The total number of shares of all classes of capital stock which the Corporation is authorized to issue is 110,000,000
shares, consisting of 100,000,000 shares of common stock, par value $0.0001 per share (the “
Common Stock
”),
and 10,000,000 shares of preferred stock, par value $0.0001 per share (the “
Preferred Stock
”).
Section 4.02
Preferred
Stock
. The Preferred Stock may be issued from time to time in one or more series. The Board is hereby expressly authorized
to provide for the issuance of shares of the Preferred Stock in one or more series and to establish from time to time the number
of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative,
participating, optional and other special rights, if any, of each such series and any qualifications, limitations and restrictions
thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance of such series and
included in a certificate of designation (a “
Preferred Stock Designation
”) filed pursuant to the DGCL,
and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any
such resolution or resolutions.
Section 4.03
Common Stock
.
(a) The Board is hereby
expressly authorized to provide for the issuance of shares of Common Stock from time to time. The holders of shares of Common Stock
shall be entitled to one vote for each such share on each matter properly submitted to the stockholders on which the holders of
the Common Stock are entitled to vote. Except as otherwise required by law or this Second Amended and Restated Certificate, or
in any Preferred Stock Designation, at any annual or special meeting of the stockholders of the Corporation, the holders of the
Common Stock shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to
a vote of the stockholders. Notwithstanding the foregoing, except as otherwise required by law or this Second Amended and Restated
Certificate, or in a Preferred Stock Designation, the holders of the Common Stock shall not be entitled to vote on any amendment
to this Second Amended and Restated Certificate or any amendment to any Preferred Stock Designation that relates solely to the
terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately
or together with the holders of one or more other such series, to vote thereon pursuant to this Second Amended and Restated Certificate
or any Preferred Stock Designation.
(b) Subject to the rights,
if any, of the holders of any outstanding series of Preferred Stock and any other provisions of this Second Amended and Restated
Certificate, as it may be amended from time to time, the holders of Common Stock shall be entitled to receive ratably such dividends
and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the
Board from time to time out of any assets or funds of the Corporation legally available therefor.
(c) Subject to the rights,
if any, of the holders of any outstanding series of the Preferred Stock and any other provisions of this Second Amended and Restated
Certificate, as it may be amended from time to time, in the event of any voluntary or involuntary liquidation, dissolution or winding-up
of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of
the Common Stock shall be entitled to receive ratably all the remaining assets of the Corporation available for distribution to
its stockholders.
Section 4.04
Rights
and Options
. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof
to purchase shares of any class or series of the Corporation’s capital stock or other securities of the Corporation, and
such rights, warrants and options shall be evidenced by instrument(s) approved by the Board. The Board is hereby expressly authorized
to provide for the issuance of such rights, warrants and options and to establish from time to time the number of such rights,
warrants and options to be issued and to fix the exercise price, duration, times for exercise and other terms and conditions of
such rights, warrants or options; provided
,
however, that the consideration to be received for any shares of capital stock
subject thereto may not be less than the par value thereof.
Article V. BOARD OF DIRECTORS
Section 5.01
Board
Powers
. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition
to the powers and authority expressly conferred upon the Board by statute, this Second Amended and Restated Certificate or the
Bylaws (“
Bylaws
”) of the Corporation, the Board is hereby empowered to exercise all such powers and do
all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL,
this Second Amended and Restated Certificate and any Bylaws adopted by the stockholders.
Section 5.02
Number, Election and Term.
(a) The number of directors
of the Corporation, other than those who may be elected by the holders of one or more series of the Preferred Stock voting separately
by class or series, shall be fixed from time to time exclusively by the Board pursuant to a resolution adopted by a majority of
the Board.
(b) [Reserved.]
(c) Subject to Section
5.05 hereof, a director shall hold office until the next annual meeting of stockholders and until his or her successor has been
elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.
(d) Unless and except
to the extent that the Bylaws shall so require, the election of directors need not be by written ballot.
Section 5.03
Newly
Created Directorships and Vacancies
. Subject to Section 5.05 hereof, newly created directorships resulting from an increase
in the number of directors and any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal
or other cause may be filled solely by a majority vote of the remaining directors then in office, even if less than a quorum, or
by a sole remaining director (and not by stockholders), and any director so chosen shall hold office the next annual meeting of
stockholders and until his or her successor has been elected and qualified, subject, however, to such director’s earlier
death, resignation, retirement, disqualification or removal.
Section 5.04
Removal
.
Subject to Section 5.05 hereof, any or all of the directors may be removed from office at any time, but only for cause and only
by the affirmative vote of holders of a majority of the then outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class.
Section 5.05
Preferred
Stock — Directors
. Notwithstanding any other provision of this Article V, and except as otherwise required by law, whenever
the holders of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one
or more directors, the term of office, the filling of vacancies, the removal from office and other features of such directorships
shall be governed by the terms of such series of the Preferred Stock as set forth in this Second Amended and Restated Certificate
or any Preferred Stock Designation.
Article VI. BYLAWS
In furtherance and not
in limitation of the powers conferred upon it by law, the Board shall have the power to adopt, amend, alter or repeal the Bylaws.
The affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the Bylaws. The Bylaws also
may be adopted, amended, altered or repealed by the stockholders upon obtaining (i) the affirmative vote of the holders of at least
a majority of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors,
voting together as a single class, and (ii) any other vote of the holders of any class or series of capital stock of the Corporation
required by applicable law or by this Second Amended and Restated Certificate or any Preferred Stock Designation; provided, however,
that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if
such Bylaws had not been adopted.
Article VII. MEETINGS OF STOCKHOLDERS;
ACTION BY WRITTEN CONSENT
Section 7.01
Meetings
.
Subject to the rights of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law,
special meetings of stockholders of the Corporation may be called only by the Chairman of the Board, Chief Executive Officer or
President of the Corporation, or the Board pursuant to a resolution adopted by a majority of the Board, and the stockholders shall
have no right to call a special meeting.
Section 7.02
Advance
Notice
. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders
before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.
Section 7.03
Action
by Written Consent
. Subsequent to the consummation of the Corporation’s initial public offering of securities (the “
Offering
”),
any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or
special meeting of such holders and may not be effected by written consent of the stockholders.
Article VIII. LIMITED LIABILITY; INDEMNIFICATION
Section 8.01
Limitation
of Director Liability
. A director of the Corporation shall not be liable to the Corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is
not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing
sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or
omission occurring prior to the time of such amendment, modification or repeal.
Section 8.02
Indemnification and Advancement
of Expenses
.
(a) To the fullest extent
permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless
each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “
proceeding
”)
by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the
Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation
or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee
benefit plan (an “
indemnitee
”), whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or
agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines,
ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such
proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’
fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition;
provided
,
however
, that, to the extent required by applicable law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the indemnitee, to repay all
amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this Section
8.02 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 8.02 shall be contract rights
and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 8.02(a),
except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance
expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding
(or part thereof) was authorized by the Board.
(b) The rights to indemnification
and advancement of expenses conferred on any indemnitee by this Section 8.02 shall not be exclusive of any other rights that any
indemnitee may have or hereafter acquire under law, this Second Amended and Restated Certificate, the Bylaws, an agreement, vote
of stockholders or disinterested directors, or otherwise.
(c) Any repeal or amendment
of this Section 8.02 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this
Second Amended and Restated Certificate inconsistent with this Section 8.02, shall, unless otherwise required by law, be prospective
only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on
a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection
existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless
of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring
prior to such repeal or amendment or adoption of such inconsistent provision.
(d) This Section 8.02
shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnity and
to advance expenses to persons other than indemnitees.
Article IX. CORPORATE OPPORTUNITY
The doctrine of corporate
opportunity, or any other analogous doctrine, shall not apply with respect to the Corporation or any of its officers or directors
or in circumstances where the application of any such doctrine would conflict with any of his or her current or future fiduciary
duties or contractual obligations.
Article X. AMENDMENT OF SECOND AMENDED
AND RESTATED
CERTIFICATE OF INCORPORATION
The Corporation reserves
the right to amend, alter, change or repeal any provision contained in this Second Amended and Restated Certificate or any Preferred
Stock Designation, in the manner now or hereafter prescribed by this Second Amended and Restated Certificate and the DGCL; and,
except as set forth in
Article VIII
, all rights, preferences and privileges herein conferred upon stockholders, directors
or any other persons by and pursuant to this Second Amended and Restated Certificate in its present form or as hereafter amended
are granted subject to the right reserved in this
Article X
.
Article XI. EXCLUSIVE JURISDICTION
Section 11.1 Exclusive
Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State
of Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative
action or proceeding brought or purporting to be brought on behalf of the Corporation, (ii) any action asserting a claim of breach
of a fiduciary duty owed by any current or former director, officer or other employee of the Corporation to the Corporation or
the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation, its current or former directors,
officers or employees arising pursuant to any provision of the DGCL or this Second Amended and Restated Certificate or the Corporation’s
Bylaws, or (iv) any action asserting a claim against the Corporation or any of its current or former directors, officers, employees
or agents governed by the internal affairs doctrine.
Section 11.2 Personal
Jurisdiction. If any action the subject matter of which is within the scope of Section 11.1 immediately above is filed in a court
other than a court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder
shall be deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within the State of
Delaware in connection with any action brought in any such court to enforce Section 11.1 immediately above (an “FSC Enforcement
Action”) and (ii) having service of process made upon such stockholder in any such FSC Enforcement Action by service upon
such stockholder’s counsel in the Foreign Action as agent for such stockholder. Any person or entity purchasing or otherwise
acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions
of this ARTICLE XI.
[Remainder of page is intentionally left
blank]
IN WITNESS WHEREOF,
JM Global Holding Company has caused this Second Amended and Restated Certificate of Incorporation to be duly executed in its name
and on its behalf as of the 6
th
day of February, 2018.
|
JM GLOBAL HOLDING COMPANY
|
|
|
|
|
By:
|
/s/ Tim Richerson
|
|
|
Name: Tim Richerson
|
|
|
Title: Chief Executive Officer
|
[Signature Page to Second Amended and Restated
Certificate of Incorporation]
APPENDIX G
CURRENT BYLAWS OF THE COMPANY
BY-LAWS
Of
TMSR HOLDING COMPANY LIMITED
BY-LAWS OF
JM GLOBAL HOLDING COMPANY
(THE “CORPORATION”)
ARTICLE I
OFFICES
Section 1.1. Registered
Office
. The registered office of the Corporation within the State of Delaware shall be located at either (a) the principal
place of business of the Corporation in the State of Delaware or (b) the office of the corporation or individual acting as the
Corporation’s registered agent in Delaware.
Section 1.2. Additional
Offices
. The Corporation may, in addition to its registered office in the State of Delaware, have such other offices and places
of business, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the “
Board
”)
may from time to time determine or as the business and affairs of the Corporation may require.
ARTICLE II
STOCKHOLDERS MEETINGS
Section 2.1. Annual
Meetings
. The annual meeting of stockholders shall be held at such place and time and on such date as shall be determined by
the Board and stated in the notice of the meeting, provided that the Board may in its sole discretion determine that the meeting
shall not be held at any place, but may instead be held solely by means of remote communication pursuant to
Section 9.5(a)
.
At each annual meeting, the stockholders shall elect those directors of the Corporation to fill any term of a directorship that
expires on the date of such annual meeting and may transact any other business as may properly be brought before the meeting.
Section 2.2. Special
Meetings
. Subject to the rights of the holders of any outstanding series of the Preferred Stock, and to the requirements of
applicable law, special meetings of stockholders, for any purpose or purposes, may be called only by the Chairman of the Board,
Chief Executive Officer, or the Board pursuant to a resolution adopted by a majority of the Board. Special meetings of stockholders
shall be held at such place and time and on such date as shall be determined by the Board and stated in the Corporation’s
notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place,
but may instead be held solely by means of remote communication pursuant to
Section 9.5(a)
.
Section 2.3. Notices.
Notice of each stockholders meeting stating the place, if any, date, and time of the meeting, and the means of remote communication,
if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, shall be given
in the manner permitted by Section 9.3 to each stockholder entitled to vote thereat by the Corporation not less than 10 nor more
than 60 days before the date of the meeting. If said notice is for a stockholders meeting other than an annual meeting, it shall
in addition state the purpose or purposes for which the meeting is called, and the business transacted at such meeting shall be
limited to the matters so stated in the Corporation’s notice of meeting (or any supplement thereto). Any meeting of stockholders
as to which notice has been given may be postponed, and any special meeting of stockholders as to which notice has been given may
be cancelled, by the Board upon public announcement (as defined in Section 2.7(c)) given before the date previously scheduled for
such meeting.
Section 2.4. Quorum
.
Except as otherwise provided by applicable law, the Corporation’s Certificate of Incorporation, as the same may be amended
or restated from time to time (the “
Certificate of Incorporation
”) or these By Laws, the presence, in
person or by proxy, at a stockholders meeting of the holders of shares of outstanding capital stock of the Corporation representing
a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting shall
constitute a quorum for the transaction of business at such meeting, except that when specified business is to be voted on by a
class or series of stock voting as a class, the holders of shares representing a majority of the voting power of the outstanding
shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. If a quorum
shall not be present or represented by proxy at any meeting of the stockholders of the Corporation, the chairman of the meeting
may adjourn the meeting from time to time in the manner provided in
Section 2.6
until a quorum shall attend. The stockholders
present at a duly convened meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation or to another corporation, if a
majority of the voting power of the shares entitled to vote in the election of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the Corporation or any such other corporation to vote shares held by it in a fiduciary
capacity.
Section 2.5. Voting
of Shares.
(a)
Voting Lists
.
The Secretary shall prepare, or shall cause the officer or agent who has charge of the stock ledger of the Corporation to prepare,
at least 10 days before every meeting of stockholders, a complete list of the stockholders of record entitled to vote at such meeting
and showing the address and the number of shares registered in the name of each stockholder. Nothing contained in this
Section
2.5(a)
shall require the Corporation to include electronic mail addresses or other electronic contact information on such list.
Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least 10 days prior to the meeting: (i) 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 (ii) during ordinary business hours,
at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available
on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders
of the Corporation. 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 a meeting of stockholders
is to be held solely by means of remote communication as permitted by
Section 9.5(a)
, the list shall 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 meeting. The stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the list required by this
Section 2.5(a)
or to vote in person or by proxy at any meeting
of stockholders.
(b)
Manner of Voting
.
At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized by the Board, the
voting by stockholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot submitted
by electronic transmission (as defined in
Section 9.3
), provided that any such electronic transmission must either set forth
or be submitted with information from which the Corporation can determine that the electronic transmission was authorized by the
stockholder or proxy holder. The Board, in its discretion, or the chairman of the meeting of stockholders, in such person’s
discretion, may require that any votes cast at such meeting shall be cast by written ballot.
(c)
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 may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the
Secretary of the Corporation until the meeting is called to order, but shall be filed with the Secretary before being voted. Without
limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, either
of the following shall constitute a valid means by which a stockholder may grant such authority.
(i) A stockholder may
execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by
the stockholder or such stockholder’s authorized officer, director, employee or agent signing such writing or causing such
person’s signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature.
(ii) A stockholder may
authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an
electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service
organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided
that any such electronic transmission must either set forth or be submitted with information from which it can be determined that
the electronic transmission was authorized by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction
of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used
in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be
used; provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire
original writing or transmission.
(d)
Required Vote
.
Subject to the rights of the holders of one or more series of preferred stock of the Corporation (“
Preferred Stock
”),
voting separately by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, the election
of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy
at the meeting and entitled to vote thereon. All other matters shall be determined by the vote of a majority of the votes cast
by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon, unless the matter is
one upon which, by applicable law, the Certificate of Incorporation, these By Laws or applicable stock exchange rules, a different
vote is required, in which case such provision shall govern and control the decision of such matter.
(e)
Inspectors of
Election
. The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons
as inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act
at such meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board may appoint one or more
persons as alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed
by the Board, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging
his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according
to the best of his or her ability. The inspectors shall ascertain and report the number of outstanding shares and the voting power
of each; determine the number of shares present in person or represented by proxy at the meeting and the validity of proxies and
ballots; count all votes and ballots and report the results; determine and retain for a reasonable period a record of the disposition
of any challenges made to any determination by the inspectors; and certify their determination of the number of shares represented
at the meeting and their count of all votes and ballots. No person who is a candidate for an office at an election may serve as
an inspector at such election. Each report of an inspector shall be in writing and signed by the inspector or by a majority of
them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors.
Section 2.6. Adjournments
.
Any meeting of stockholders, annual or special, may be adjourned by the chairman of the meeting, from time to time, whether or
not there is a quorum, to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if
the date, time, and place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxy holders
may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment
is taken. At the adjourned meeting the stockholders, or the holders of any class or series of stock entitled to vote separately
as a class, as the case may be, may transact any business that might have been transacted at the original meeting. If the adjournment
is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the meeting.
Section 2.7. Advance
Notice for Business.
(a)
Annual
Meetings of Stockholders
. No business may be transacted at an annual meeting of stockholders, other than business that is either
(i) specified in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board,
(ii) otherwise properly brought before the annual meeting by or at the direction of the Board or (iii) otherwise properly brought
before the annual meeting by any stockholder of the Corporation (x) who is a stockholder of record on the date of the giving of
the notice provided for in this
Section 2.7(a)
and on the record date for the determination of stockholders entitled to
vote at such annual meeting and (y) who complies with the notice procedures set forth in this
Section 2.7(a)
. Notwithstanding
anything in this
Section 2.7(a)
to the contrary, only persons nominated for election as a director to fill any term of a
directorship that expires on the date of the annual meeting pursuant to
Section 3.2
will be considered for election at such
meeting.
(i) In addition
to any other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting by
a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation
and such business must otherwise be a proper matter for stockholder action. Subject to
Section 2.7(a)(iii)
, a stockholder’s
notice to the Secretary with respect to such business, to be timely, must be received by the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 90th day nor earlier than the opening of business on the
120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the
event that the annual meeting is called for a date that is not within 45 days before or after such anniversary date, notice by
the stockholder to be timely must be so received not earlier than the opening of business on the 120th day before the meeting and
not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th
day following the day on which public announcement of the date of the annual meeting is first made by the Corporation. The public
announcement of an adjournment of an annual meeting shall not commence a new time period for the giving of a stockholder’s
notice as described in this Section 2.7(a).
(ii) To be in proper
written form, a stockholder’s notice to the Secretary with respect to any business (other than nominations) must set forth
as to each such matter such stockholder proposes to bring before the annual meeting (A) 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 such business includes a proposal to amend these By Laws, the language of the proposed amendment)
and the reasons for conducting such business at the annual meeting, (B) the name and record address of such stockholder and the
name and address of the beneficial owner, if any, on whose behalf the proposal is made, (C) 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 the beneficial owner,
if any, on whose behalf the proposal is made, (D) a description of all arrangements or understandings between such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made and any other person or persons (including their names)
in connection with the proposal of such business by such stockholder, (E) any material interest of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made in such business and (F) a representation that such stockholder intends to
appear in person or by proxy at the annual meeting to bring such business before the meeting.
(iii) The foregoing
notice requirements of this
Section 2.7(a)
shall be deemed satisfied by a stockholder as to any proposal (other than nominations)
if the stockholder has notified the Corporation of such stockholder’s intention to present such proposal at an annual meeting
in compliance with Rule 14a-8 (or any successor thereof) of the Securities Exchange Act of 1934, as amended (the “
Exchange
Act
”), and such stockholder has complied with the requirements of such Rule for inclusion of such proposal in a proxy
statement prepared by the Corporation to solicit proxies for such annual meeting. No business shall be conducted at the annual
meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this
Section
2.7(a)
, provided, however, that once business has been properly brought before the annual meeting in accordance with such procedures,
nothing in this
Section 2.7(a)
shall be deemed to preclude discussion by any stockholder of any such business. If the Board
or the chairman of the annual meeting determines that any stockholder proposal was not made in accordance with the provisions of
this
Section 2.7(a)
or that the information provided in a stockholder’s notice does not satisfy the information requirements
of this Section 2.7(a), such proposal shall not be presented for action at the annual meeting. Notwithstanding the foregoing provisions
of this Section 2.7(a), if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting
of stockholders of the Corporation to present the proposed business, such proposed business shall not be transacted, notwithstanding
that proxies in respect of such matter may have been received by the Corporation.
(iv) In addition
to the provisions of this
Section 2.7(a)
, a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this
Section 2.7(a)
shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
(b)
Special Meetings
of Stockholders
. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made
at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting
only pursuant to
Section 3.2
.
(c)
Public Announcement
.
For purposes of these By Laws, “
public announcement
” shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation
with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
Section 2.8. Conduct
of Meetings
. The chairman of each annual and special meeting of stockholders shall be the Chairman of the Board or, in the
absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director)
or, in the absence (or inability or refusal to act of the Chief Executive Officer or if the Chief Executive Officer is not a director,
the President (if he or she shall be a director) or, in the absence (or inability or refusal to act) of the President or if the
President is not a director, such other person as shall be appointed by the Board. The date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairman
of the meeting. The Board may adopt such rules and regulations for the conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with these By Laws or such rules and regulations as adopted by the Board, the chairman
of any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules,
regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct
of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairman of the meeting,
may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting;
(b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at
or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or
such other persons as the chairman of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed
for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants. Unless and to
the extent determined by the Board or the chairman of the meeting, meetings of stockholders shall not be required to be held in
accordance with the rules of parliamentary procedure. The secretary of each annual and special meeting of stockholders shall be
the Secretary or, in the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary so appointed to act
by the chairman of the meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries,
the chairman of the meeting may appoint any person to act as secretary of the meeting.
Section 2.9. Consents
in Lieu of Meeting
. Unless otherwise provided by the Certificate of Incorporation, and subject to the proviso in
Section
2.1,
until the corporation consummates an initial public offering (“
Offering
”), any action required
to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting
forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present
and voted, and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal
place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders
are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return
receipt requested.
Every written consent
shall bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective to take the
corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this
section and Delaware Law to the Corporation, written consents signed by a sufficient number of holders to take action are delivered
to the Corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of
the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the
Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE III
DIRECTORS
Section 3.1. Powers
.
The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or
by these By Laws required to be exercised or done by the stockholders. Directors need not be stockholders or residents of the State
of Delaware.
Section 3.2. Advance
Notice for Nomination of Directors.
(a) Only persons who
are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except
as may be otherwise provided by the terms of one or more series of Preferred Stock with respect to the rights of holders of one
or more series of Preferred Stock to elect directors. Nominations of persons for election to the Board at any annual meeting of
stockholders, or at any special meeting of stockholders called for the purpose of electing directors as set forth in the Corporation’s
notice of such special meeting, may be made (i) by or at the direction of the Board or (ii) by any stockholder of the Corporation
(x) who is a stockholder of record on the date of the giving of the notice provided for in this
Section 3.2
and on the record
date for the determination of stockholders entitled to vote at such meeting and (y) who complies with the notice procedures set
forth in this
Section 3.2
.
(b) In addition to
any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder’s notice to the Secretary
must be received by the Secretary at the principal executive offices of the Corporation (i) in the case of an annual meeting, not
later than the close of business on the 90th day nor earlier than the opening of business on the 120th day before the anniversary
date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting
is called for a date that is not within 45 days before or after such anniversary date, notice by the stockholder to be timely must
be so received not earlier than the opening of business on the 120th day before the meeting and not later than the later of (x)
the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which
public announcement of the date of the annual meeting was first made by the Corporation; and (ii) in the case of a special meeting
of stockholders called for the purpose of electing directors, not later than the close of business on the 10th day following the
day on which public announcement of the date of the special meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting or special meeting commence a new time period for the giving of a stockholder’s
notice as described in this
Section 3.2
.
(c) Notwithstanding
anything in paragraph (b) to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting
is greater than the number of directors whose terms expire on the date of the annual meeting and there is no public announcement
by the Corporation naming all of the nominees for the additional directors to be elected or specifying the size of the increased
Board before the close of business on the 90th day prior to the anniversary date of the immediately preceding annual meeting of
stockholders, a stockholder’s notice required by this
Section 3.2
shall also be considered timely, but only with respect
to nominees for the additional directorships created by such increase that are to be filled by election at such annual meeting,
if it shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business
on the 10th day following the date on which such public announcement was first made by the Corporation.
(d) To be in proper
written form, a stockholder’s notice to the Secretary 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 the person, (B) the principal
occupation or employment of the person, (C) the class or series and number of shares of capital stock of the Corporation that are
owned beneficially or of record by the person and (D) any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and (ii) as to the stockholder
giving the notice (A) the name and record address of such stockholder and the name and address of the beneficial owner, if any,
on whose behalf the nomination is made, (B) 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 the beneficial owner, if any, on whose behalf the nomination is made,
(C) a description of all arrangements or understandings relating to the nomination to be made by such stockholder among such stockholder,
the beneficial owner, if any, on whose behalf the nomination is made, each proposed nominee and any other person or persons (including
their names), (D) a representation that such stockholder intends to appear in person or by proxy at the meeting to nominate the
persons named in its notice and (E) any other information relating to such stockholder and the beneficial owner, if any, on whose
behalf the nomination is made that would be required to be disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being
named as a nominee and to serve as a director if elected.
(e) If the Board or
the chairman of the meeting of stockholders determines that any nomination was not made in accordance with the provisions of this
Section 3.2
, then such nomination shall not be considered at the meeting in question. Notwithstanding the foregoing provisions
of this
Section 3.2
, if the stockholder (or a qualified representative of the stockholder) does not appear at the meeting
of stockholders of the Corporation to present the nomination, such nomination shall be disregarded, notwithstanding that proxies
in respect of such nomination may have been received by the Corporation.
(f) In addition to
the provisions of this
Section 3.2
, a stockholder shall also comply with all of the applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this
Section 3.2
shall
be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the Certificate of Incorporation.
Section 3.3. Compensation
.
Unless otherwise restricted by the Certificate of Incorporation or these By Laws, the Board shall have the authority to fix the
compensation of directors. The directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board and
may be paid either a fixed sum for attendance at each meeting of the Board or other compensation as director. No such payment shall
preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees
of the Board may be allowed like compensation and reimbursement of expenses for service on the committee.
ARTICLE IV
BOARD MEETINGS
Section 4.1. Annual
Meetings
. The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place
of the annual stockholders meeting unless the Board shall fix another time and place and give notice thereof in the manner required
herein for special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except
as provided in this
Section 4.1
.
Section 4.2. Regular
Meetings
. Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places as
shall from time to time be determined by the Board.
Section 4.3. Special
Meetings
. Special meetings of the Board (a) may be called by the Chairman of the Board or President and (b) shall be called
by the Chairman of the Board, President or Secretary on the written request of at least a majority of directors then in office,
or the sole director, as the case may be, and shall be held at such time, date and place as may be determined by the person calling
the meeting or, if called upon the request of directors or the sole director, as specified in such written request. Notice of each
special meeting of the Board shall be given, as provided in
Section 9.3
, to each director (i) at least 24 hours before the
meeting if such notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of
a form of electronic transmission and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally
recognized overnight delivery service; and (iii) at least five days before the meeting if such notice is sent through the United
States mail. If the Secretary shall fail or refuse to give such notice, then the notice may be given by the officer who called
the meeting or the directors who requested the meeting. Any and all business that may be transacted at a regular meeting of the
Board may be transacted at a special meeting. Except as may be otherwise expressly provided by applicable law, the Certificate
of Incorporation, or these By Laws, neither the business to be transacted at, nor the purpose of, any special meeting need be specified
in the notice or waiver of notice of such meeting. A special meeting may be held at any time without notice if all the directors
are present or if those not present waive notice of the meeting in accordance with
Section 9.4
.
Section 4.4. Quorum;
Required Vote
. A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board,
and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except
as may be otherwise specifically provided by applicable law, the Certificate of Incorporation or these By Laws. If a quorum shall
not be present at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other
than announcement at the meeting, until a quorum is present.
Section 4.5. Consent
In Lieu of Meeting
. Unless otherwise restricted by the Certificate of Incorporation or these By Laws, any action required or
permitted to be taken at any meeting of the Board or 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, and the writing or writings or
electronic transmission or transmissions (or paper reproductions thereof) are filed with the minutes of proceedings of the Board
or committee. 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.
Section 4.6. Organization
.
The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence (or inability or refusal to act)
of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or
refusal to act) of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she
shall be a director) or in the absence (or inability or refusal to act) of the President or if the President is not a director,
a chairman elected from the directors present. The Secretary shall act as secretary of all meetings of the Board. In the absence
(or inability or refusal to act) of the Secretary, an Assistant Secretary shall perform the duties of the Secretary at such meeting.
In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
Section 5.1. Establishment
.
The Board may by resolution passed by a majority of the Board designate one or more committees, each committee to consist of one
or more of the directors of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the
Board when required. The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve
any such committee.
Section 5.2. Available
Powers
. Any committee established pursuant to
Section 5.1
hereof, to the extent permitted by applicable law and by resolution
of the Board, shall have and may exercise all of the powers and authority of the Board in the management of the business and affairs
of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it.
Section 5.3. Alternate
Members
. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee.
Section 5.4. Procedures
.
Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by
such committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate
member, unless such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such
meeting) shall constitute a quorum for the transaction of business. The act of a majority of the members present at any meeting
at which a quorum is present shall be the act of the committee, except as otherwise specifically provided by applicable law, the
Certificate of Incorporation, these By Laws or the Board. If a quorum is not present at a meeting of a committee, the members present
may adjourn the meeting from time to time, without notice other than an announcement at the meeting, until a quorum is present.
Unless the Board otherwise provides and except as provided in these By Laws, each committee designated by the Board may make, alter,
amend and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business
in the same manner as the Board is authorized to conduct its business pursuant to Article III and Article IV of these By Laws.
ARTICLE VI
OFFICERS
Section 6.1. Officers
.
The officers of the Corporation elected by the Board shall be a Chairman of the Board, a Chief Executive Officer, a President,
a Chief Financial Officer, a Secretary and such other officers (including without limitation, Vice Presidents, Assistant Secretaries
and a Treasurer) as the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties
as generally pertain to their respective offices, subject to the specific provisions of this
Article VI
. Such officers shall
also have such powers and duties as from time to time may be conferred by the Board. The Chief Executive Officer or President may
also appoint such other officers (including without limitation one or more Vice Presidents and Controllers) as may be necessary
or desirable for the conduct of the business of the Corporation. Such other officers shall have such powers and duties and shall
hold their offices for such terms as may be provided in these By Laws or as may be prescribed by the Board or, if such officer
has been appointed by the Chief Executive Officer or President, as may be prescribed by the appointing officer.
(a)
Chairman of
the Board
. The Chairman of the Board shall preside when present at all meetings of the stockholders and the Board. The Chairman
of the Board shall have general supervision and control of the acquisition activities of the Corporation subject to the ultimate
authority of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters. In
the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a
director) shall preside when present at all meetings of the stockholders and the Board. The powers and duties of the Chairman of
the Board shall not include supervision or control of the preparation of the financial statements of the Company (other than through
participation as a member of the Board). The position of Chairman of the Board and Chief Executive Officer may be held by the same
person.
(b)
Chief Executive
Officer
. The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision
of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board, and
shall be responsible for the execution of the policies of the Board with respect to such matters, except to the extent any such
powers and duties have been prescribed to the Chairman of the Board pursuant to
Section 6.1(a)
above. In the absence (or
inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall
preside when present at all meetings of the stockholders and the Board. The position of Chief Executive Officer and President may
be held by the same person.
(c)
President
.
The President shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved
for the final executive responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairman
of the Board and Chief Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings
of the stockholders and the Board. The President shall also perform such duties and have such powers as shall be designated by
the Board. The position of President and Chief Executive Officer may be held by the same person.
(d)
Vice Presidents
.
In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President.
Any one or more of the Vice Presidents may be given an additional designation of rank or function.
(e)
Secretary
.
(i) The Secretary shall
attend all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings of
such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the
stockholders and special meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chairman
of the Board, Chief Executive Officer or President. The Secretary shall have custody of the corporate seal of the Corporation and
the Secretary, or any Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed,
it may be attested by his or her signature or by the signature of such Assistant Secretary. The Board may give general authority
to any other officer to affix the seal of the Corporation and to attest the affixing thereof by his or her signature.
(ii) The Secretary
shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s
transfer agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders
and their addresses, the number and classes of shares held by each and, with respect to certificated shares, the number and date
of certificates issued for the same and the number and date of certificates cancelled.
(f)
Assistant Secretaries
.
The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the Board shall, in
the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g)
Chief Financial
Officer
. The Chief Financial Officer shall perform all duties commonly incident to that office (including, without limitation,
the care and custody of the funds and securities of the Corporation, which from time to time may come into the Chief Financial
Officer’s hands and the deposit of the funds of the Corporation in such banks or trust companies as the Board, the Chief
Executive Officer or the President may authorize).
(h)
Treasurer
.
The Treasurer shall, in the absence (or inability or refusal to act) of the Chief Financial Officer, perform the duties and exercise
the powers of the Chief Financial Officer.
Section 6.2. Term
of Office; Removal; Vacancies
. The elected officers of the Corporation shall be appointed by the Board and shall hold office
until their successors are duly elected and qualified by the Board or until their earlier death, resignation, retirement, disqualification,
or removal from office. Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by the
Chief Executive Officer or President may also be removed, with or without cause, by the Chief Executive Officer or President, as
the case may be, unless the Board otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled
by the Board. Any vacancy occurring in any office appointed by the Chief Executive Officer or President may be filled by the Chief
Executive Officer, or President, as the case may be, unless the Board then determines that such office shall thereupon be elected
by the Board, in which case the Board shall elect such officer.
Section 6.3. Other
Officers
. The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and
agents or delegate the power to remove same, as it shall from time to time deem necessary or desirable.
Section 6.4. Multiple
Officeholders; Stockholder and Director Officers
. Any number of offices may be held by the same person unless the Certificate
of Incorporation or these By Laws otherwise provide. Officers need not be stockholders or residents of the State of Delaware.
ARTICLE VII
SHARES
Section 7.1. Certificated
and Uncertificated Shares
. The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion
of the Board.
Section 7.2. Multiple
Classes of Stock
. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any
class, the Corporation shall (a) cause the powers, designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights
to be set forth in full or summarized on the face or back of any certificate that the Corporation issues to represent shares of
such class or series of stock or (b) in the case of uncertificated shares, within a reasonable time after the issuance or transfer
of such shares, send to the registered owner thereof a written notice containing the information required to be set forth on certificates
as specified in clause (a) above; provided, however, that, except as otherwise provided by applicable law, in lieu of the foregoing
requirements, there may be set forth on the face or back of such certificate or, in the case of uncertificated shares, on such
written notice a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations,
preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences or rights.
Section 7.3. Signatures
.
Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by (a) the
Chairman of the Board, Chief Executive Officer, the President or a Vice President and (b) the Treasurer, the Secretary or an Assistant
Secretary of the Corporation. Any or all the signatures on the certificate may be a facsimile. In case 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 be issued by the Corporation with the same
effect as if such person were such officer, transfer agent or registrar on the date of issue.
Section 7.4. Consideration
and Payment for Shares.
(a) Subject to applicable
law and the Certificate of Incorporation, shares of stock may be issued for such consideration, having in the case of shares with
par value a value not less than the par value thereof, and to such persons, as determined from time to time by the Board. The consideration
may consist of any tangible or intangible property or benefit to the Corporation including cash, promissory notes, services performed,
contracts for services to be performed or other securities.
(b) Subject to applicable
law and the Certificate of Incorporation, shares may not be issued until the full amount of the consideration has been paid, unless
upon the face or back of each certificate issued to represent any partly paid shares of capital stock or upon the books and records
of the Corporation in the case of partly paid uncertificated shares, there shall have been set forth the total amount of the consideration
to be paid therefor and the amount paid thereon up to and including the time said certificate representing certificated shares
or said uncertificated shares are issued.
Section 7.5. Lost,
Destroyed or Wrongfully Taken Certificates.
(a) If an owner of
a certificate representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation shall
issue a new certificate representing such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate
before the Corporation has notice that the certificate representing such shares has been acquired by a protected purchaser; (ii)
if requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim that
may be made against the Corporation on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance
of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.
(b) If a certificate
representing shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation of that
fact within a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation
registers a transfer of such shares before receiving notification, the owner shall be precluded from asserting against the Corporation
any claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated
form.
Section 7.6. Transfer
of Stock.
(a) If a certificate
representing shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of transfer
of such shares or an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares,
the Corporation shall register the transfer as requested if:
(i) in the case of certificated
shares, the certificate representing such shares has been surrendered;
(ii)(A) with respect
to certificated shares, the endorsement is made by the person specified by the certificate as entitled to such shares; (B) with
respect to uncertificated shares, an instruction is made by the registered owner of such uncertificated shares; or (C) with respect
to certificated shares or uncertificated shares, the endorsement or instruction is made by any other appropriate person or by an
agent who has actual authority to act on behalf of the appropriate person;
(iii) the Corporation
has received a guarantee of signature of the person signing such endorsement or instruction or such other reasonable assurance
that the endorsement or instruction is genuine and authorized as the Corporation may request;
(iv) the transfer does
not violate any restriction on transfer imposed by the Corporation that is enforceable in accordance with
Section 7.8(a)
;
and
(v) such other conditions
for such transfer as shall be provided for under applicable law have been satisfied.
(b) Whenever any transfer
of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry of transfer
if, when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated, when
the instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request
the Corporation to do so.
Section 7.7. Registered
Stockholders
. Before due presentment for registration of transfer of a certificate representing shares of the Corporation or
of an instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner
as the person exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation,
vote such shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers
of the owner of such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a
nominee on behalf of such person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying
such other conditions as are provided under applicable law, may also so inspect the books and records of the Corporation.
Section 7.8. Effect
of the Corporation’s Restriction on Transfer.
(a) A written restriction
on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the Corporation that may
be owned by any person or group of persons, if permitted by the DGCL and noted conspicuously on the certificate representing such
shares or, in the case of uncertificated shares, contained in a notice, offering circular or prospectus sent by the Corporation
to the registered owner of such shares within a reasonable time prior to or after the issuance or transfer of such shares, may
be enforced against the holder of such shares or any successor or transferee of the holder including an executor, administrator,
trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of the holder.
(b) A restriction imposed
by the Corporation on the transfer or the registration of shares of the Corporation or on the amount of shares of the Corporation
that may be owned by any person or group of persons, even if otherwise lawful, is ineffective against a person without actual knowledge
of such restriction unless: (i) the shares are certificated and such restriction is noted conspicuously on the certificate; or
(ii) the shares are uncertificated and such restriction was contained in a notice, offering circular or prospectus sent by the
Corporation to the registered owner of such shares prior to or within a reasonable time after the issuance or transfer of such
shares.
Section 7.9. Regulations
.
The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of
law, as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares
of stock or certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for
the validity thereof that certificates representing shares bear the signature of any transfer agent or registrar so appointed.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Right
to Indemnification
. To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the
Corporation shall indemnify and hold harmless each person who was or is made a party or is threatened to be made a party to or
is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (hereinafter a “
proceeding
”), by reason of the fact that he or she is or was a director
or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or
nonprofit entity, including service with respect to an employee benefit plan (hereinafter an “
Indemnitee
”),
whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in
any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses
(including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement)
reasonably incurred by such Indemnitee in connection with such proceeding; provided, however, that, except as provided in
Section
8.3
with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify an Indemnitee in connection
with a proceeding (or part thereof) initiated by such Indemnitee only if such proceeding (or part thereof) was authorized by the
Board.
Section 8.2. Right
to Advancement of Expenses
. In addition to the right to indemnification conferred in
Section 8.1
, an Indemnitee shall
also have the right to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including,
without limitation, attorneys’ fees) incurred in defending or otherwise participating in any such proceeding in advance of
its final disposition (hereinafter an “
advancement of expenses
”); provided, however, that, if the Delaware
General Corporation Law (“
DGCL
”) requires, an advancement of expenses incurred by an Indemnitee in his
or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered
by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon the Corporation’s
receipt of an undertaking (hereinafter an “
undertaking
”), by or on behalf of such Indemnitee, to repay
all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this
Article VIII
or otherwise.
Section 8.3. Right
of Indemnitee to Bring Suit
. If a claim under
Section 8.1
or
Section 8.2
is not paid in full by the Corporation
within 60 days after a written claim therefor has been received by the Corporation, except in the case of a claim for an advancement
of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought
by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall also be
entitled to be paid the expense of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee to enforce a right
to indemnification hereunder (but not in a suit brought by an Indemnitee to enforce a right to an advancement of expenses) it shall
be a defense that, and (b) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of
an undertaking, the Corporation shall be entitled to recover such expenses upon a final judicial decision from which there is no
further right to appeal (hereinafter a “
final adjudication
”) that, the Indemnitee has not met any applicable
standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not
parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee
has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including a determination
by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders)
that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met
the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, shall be a defense to such suit. In
any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee
is not entitled to be indemnified, or to such advancement of expenses, under this
Article VIII
or otherwise shall be on
the Corporation.
Section 8.4. Non-Exclusivity
of Rights
. The rights provided to any Indemnitee pursuant to this
Article VIII
shall not be exclusive of any other right,
which such Indemnitee may have or hereafter acquire under applicable law, the Certificate of Incorporation, these By Laws, an agreement,
a vote of stockholders or disinterested directors, or otherwise.
Section 8.5. Insurance
.
The Corporation may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the
DGCL.
Section 8.6. Indemnification
of Other Persons
. This
Article VIII
shall not limit the right of the Corporation to the extent and in the manner authorized
or permitted by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting the foregoing, the
Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement
of expenses to any employee or agent of the Corporation and to any other person who is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to an employee benefit plan, to the fullest extent of the provisions of this
Article VIII
with respect to the indemnification and advancement of expenses of Indemnitees under this
Article VIII
.
Section 8.7. Amendments
.
Any repeal or amendment of this
Article VIII
by the Board or the stockholders of the Corporation or by changes in applicable
law, or the adoption of any other provision of these By Laws inconsistent with this
Article VIII
, will, to the extent permitted
by applicable law, be prospective only (except to the extent such amendment or change in applicable law permits the Corporation
to provide broader indemnification rights to Indemnitees on a retroactive basis than permitted prior thereto), and will not in
any way diminish or adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior
to such repeal or amendment or adoption of such inconsistent provision; provided however, that amendments or repeals of this Article
VIII shall require the affirmative vote of the stockholders holding at least 66.7% of the voting power of all outstanding shares
of capital stock of the Corporation.
Section 8.8. Certain
Definitions
. For purposes of this
Article VIII
, (a) references to “other enterprise” shall include any employee
benefit plan; (b) references to “fines” shall include any excise taxes assessed on a person with respect to an employee
benefit plan; (c) references to “serving at the request of the Corporation” shall include any service that imposes
duties on, or involves services by, a person with respect to any employee benefit plan, its participants, or beneficiaries; and
(d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interest
of the Corporation” for purposes of Section 145 of the DGCL.
Section 8.9. Contract
Rights
. The rights provided to Indemnitees pursuant to this
Article VIII
shall be contract rights and such rights shall
continue as to an Indemnitee who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the
Indemnitee’s heirs, executors and administrators.
Section 8.10. Severability
.
If any provision or provisions of this
Article VIII
shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this
Article VIII
shall not in
any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this
Article VIII
(including,
without limitation, each such portion of this
Article VIII
containing any such provision held to be invalid, illegal or
unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Place
of Meetings
. If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required
under these By Laws is not designated in the notice of such meeting, such meeting shall be held at the principal business office
of the Corporation; provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at
any place, but instead shall be held by means of remote communication pursuant to
Section 9.5
hereof, then such meeting
shall not be held at any place.
Section 9.2. Fixing
Record Dates.
(a) In order that the
Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof,
the Board may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by
the Board, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If no record
date is fixed by the Board, 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 business day next preceding the day on which notice is given, or, if notice is waived,
at the close of business on the business day next preceding the day on which the meeting is held. A determination of stockholders
of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board may fix a new record date for the adjourned meeting.
(b) In order
that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or
for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action.
If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business
on the day on which the Board adopts the resolution relating thereto.
Section 9.3. Means of Giving Notice
.
(a)
Notice to Directors
.
Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be given to any director,
such notice shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery service, (ii) by means
of facsimile telecommunication or other form of electronic transmission, or (iii) by oral notice given personally or by telephone.
A notice to a director will be deemed given as follows: (i) if given by hand delivery, orally, or by telephone, when actually received
by the director, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon
prepaid, addressed to the director at the director’s address appearing on the records of the Corporation, (iii) if sent for
next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid,
addressed to the director at the director’s address appearing on the records of the Corporation, (iv) if sent by facsimile
telecommunication, when sent to the facsimile transmission number for such director appearing on the records of the Corporation,
(v) if sent by electronic mail, when sent to the electronic mail address for such director appearing on the records of the Corporation,
or (vi) if sent by any other form of electronic transmission, when sent to the address, location or number (as applicable) for
such director appearing on the records of the Corporation.
(b)
Notice to Stockholders
.
Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be given to any stockholder,
such notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by a nationally recognized
overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented to by the stockholder,
to the extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL. A notice to a stockholder shall
be deemed given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if sent through the
United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the stockholder
at the stockholder’s address appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery by a nationally
recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the stockholder
at the stockholder’s address appearing on the stock ledger of the Corporation, and (iv) if given by a form of electronic
transmission consented to by the stockholder to whom the notice is given and otherwise meeting the requirements set forth above,
(A) if by facsimile transmission, when directed to a number at which the stockholder has consented to receive notice, (B) if by
electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice, (C) if by
a posting on an electronic network together with separate notice to the stockholder of such specified posting, upon the later of
(1) such posting and (2) the giving of such separate notice, and (D) if by any other form of electronic transmission, when
directed to the stockholder. A stockholder may revoke such stockholder’s consent to receiving notice by means of electronic
communication by giving written notice of such revocation to the Corporation. Any such consent shall be deemed revoked if (1) the
Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with
such consent and (2) such inability becomes known to the Secretary or an Assistant Secretary or to the Corporation’s transfer
agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability
as a revocation shall not invalidate any meeting or other action.
(c)
Electronic Transmission
.
“
Electronic transmission
” means any form of communication, not directly involving the physical transmission
of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced
in paper form by such a recipient through an automated process, including but not limited to transmission by telex, facsimile telecommunication,
electronic mail, telegram and cablegram.
(d)
Notice to Stockholders
Sharing Same Address
. Without limiting the manner by which notice otherwise may be given effectively by the Corporation to
stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation
or these By Laws shall be effective if given by a single written notice to stockholders who share an address if consented to by
the stockholders at that address to whom such notice is given. A stockholder may revoke such stockholder’s consent by delivering
written notice of such revocation to the Corporation. Any stockholder who fails to object in writing to the Corporation within
60 days of having been given written notice by the Corporation of its intention to send such a single written notice shall be deemed
to have consented to receiving such single written notice.
(e)
Exceptions to
Notice Requirements
. Whenever notice is required to be given, under the DGCL, the Certificate of Incorporation or these By
Laws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there
shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any
action or meeting that shall be taken or held without notice to any such person with whom communication is unlawful shall have
the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation is such
as to require the filing of a certificate with the Secretary of State of Delaware, the certificate shall state, if such is the
fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication
is unlawful.
Whenever notice is
required to be given by the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these By Laws, to
any stockholder to whom (1) notice of two consecutive annual meetings of stockholders and all notices of stockholder meetings or
of the taking of action by written consent of stockholders without a meeting to such stockholder during the period between such
two consecutive annual meetings, or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on
securities during a 12-month period, have been mailed addressed to such stockholder at such stockholder’s address as shown
on the records of the Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not
be required. Any action or meeting that shall be taken or held without notice to such stockholder shall have the same force and
effect as if such notice had been duly given. If any such stockholder shall deliver to the Corporation a written notice setting
forth such stockholder’s then current address, the requirement that notice be given to such stockholder shall be reinstated.
In the event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State
of Delaware, the certificate need not state that notice was not given to persons to whom notice was not required to be given pursuant
to Section 230(b) of the DGCL. The exception in subsection (1) of the first sentence of this paragraph to the requirement that
notice be given shall not be applicable to any notice returned as undeliverable if the notice was given by electronic transmission.
Section 9.4. Waiver
of Notice
. Whenever any notice is required to be given under applicable law, the Certificate of Incorporation, or these By
Laws, a written waiver of such notice, signed before or after the date of such meeting by the person or persons entitled to said
notice, or a waiver by electronic transmission by the person entitled to said notice, shall be deemed equivalent to such required
notice. All such waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of
notice of such meeting, except where a person attends for the express purpose of objecting to the transaction of any business on
the ground that the meeting was not lawfully called or convened.
Section 9.5. Meeting
Attendance via Remote Communication Equipment.
(a)
Stockholder
Meetings
. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may
adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:
(i) participate in a meeting of stockholders;
and
(ii) 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 proxy holder, (B) the Corporation shall
implement reasonable measures to provide such stockholders and proxy holders 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 proxy holder votes or takes other action at the meeting by means
of remote communication, a record of such votes or other action shall be maintained by the Corporation.
(b)
Board
Meetings
. Unless otherwise restricted by applicable law, the Certificate of Incorporation or these By Laws, members of the
Board or any committee thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone
or other communications equipment by means of which all persons participating in the meeting can hear each other. Such participation
in a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.
Section 9.6. Dividends
.
The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s
capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Certificate of
Incorporation.
Section 9.7. Reserves
.
The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose
and may abolish any such reserve.
Section 9.8. Contracts
and Negotiable Instruments
. Except as otherwise provided by applicable law, the Certificate of Incorporation or these By Laws,
any contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the Corporation
by such officer or officers or other employee or employees of the Corporation as the Board may from time to time authorize. Such
authority may be general or confined to specific instances as the Board may determine. The Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, the Treasurer or any Vice President may execute and deliver any contract,
bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed
by the Board, the Chairman of the Board Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Vice
President may delegate powers to execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name
and on behalf of the Corporation to other officers or employees of the Corporation under such person’s supervision and authority,
it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to
the exercise of such delegated power.
Section 9.9. Fiscal
Year
. The fiscal year of the Corporation shall be fixed by the Board.
Section 9.10. Seal
.
The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or
a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 9.11. Books
and Records
. The books and records of the Corporation may be kept within or outside the State of Delaware at such place or
places as may from time to time be designated by the Board.
Section 9.12. Resignation
.
Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission to the Chairman
of the Board, the Chief Executive Officer, the President or the Secretary. The resignation shall take effect at the time specified
therein, or at the time of receipt of such notice if no time is specified or the specified time is earlier than the time of such
receipt. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 9.13. Surety
Bonds
. Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board, Chief Executive Officer,
President or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the
restoration to the Corporation, in case of their death, resignation, retirement, disqualification or removal from office, of all
books, papers, vouchers, money and other property of whatever kind in their possession or under their control belonging to the
Corporation, in such amounts and by such surety companies as the Chairman of the Board, Chief Executive Officer, President or the
Board may determine. The premiums on such bonds shall be paid by the Corporation and the bonds so furnished shall be in the custody
of the Secretary.
Section 9.14. Securities
of Other Corporations
. Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other instruments
relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairman
of the Board, Chief Executive Officer, President or any Vice President. Any such officer, may, in the name of and on behalf of
the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security
holders of any corporation in which the Corporation may own securities, or to consent in writing, in the name of the Corporation
as such holder, to any action by such corporation, and at any such meeting or with respect to any such consent shall possess and
may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation
might have exercised and possessed. The Board may from time to time confer like powers upon any other person or persons.
Section 9.15. Amendments
.
The Board shall have the power to adopt, amend, alter or repeal the By Laws. Except with respect to Article VIII, the affirmative
vote of a majority of the Board shall be required to adopt, amend, alter or repeal the By Laws. The By Laws also may be adopted,
amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or
series of capital stock of the Corporation required by applicable law or the Certificate of Incorporation, the affirmative vote
of the holders of at least a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt,
amend, alter or repeal the By Laws.
TMSR HOLDING COMPANY LIMITED.
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON JUNE 1, 2018