UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
January 9, 2015
VANTAGE
mHEALTHCARE, INC.
(Exact name of registrant as specified in
its charter)
Delaware |
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333-168930 |
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93-0659770 |
(State
or other jurisdiction
of
incorporation) |
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(Commission
File Number) |
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(IRS
Employer
Identification
No.) |
3 Columbus Circle, 15th Floor
New York, NY 10019
(Address of principal
executive offices and zip code)
Registrant’s
telephone number, including area code: (917) 745-7202
401 Warren Street, Suite 200
Redwood City, CA 94063
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form
8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions
(see General Instruction A.2. below):
[ ] |
Written communications pursuant to Rule 425
under the Securities Act (17 CFR 230.425) |
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[ ] |
Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12) |
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[ ] |
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b)) |
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[ ] |
Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c)) |
Item 3.03 Material Modifications to Rights of Securities Holders.
(a) Certificate of Incorporation
On January 9, 2015, Vantage mHealthcare, Inc.,
(formerly known as Vantage Health; the “Company”) filed with the Secretary of State of the State of Delaware
a Certificate of Incorporation (the “COI”) that amends, restates and supersedes in all respects the Company’s
previous certificate of incorporation. The COI was approved by the Company’s stockholders on November 24, 2014, and was the
subject of the Definitive Information Statement mailed to the Company’s stockholders of record as of November 24, 2014. Among
other things, the COI was filed to effect: (i) a name change from “Vantage Health” to “Vantage mHealthcare, Inc.;”
(ii) an increase in the Company’s authorized capital stock from 250,000,000 to 500,000,000 shares, and to reclassify such
capital stock into 450,000,000 shares of common stock, par value $0.001, and 50,000,000 shares of preferred stock, par value $0.001,
and (iii) other changes regarding certain corporate governance matters, highlights of which are discussed below and qualified in
their entirety by reference to the text of the COI attached hereto as Exhibit 3.1.
Preferred Stock
The COI provides that the Board of Directors
of the Company (the “Board”) may issue preferred stock of the Company in one or more series at such time
or times as the Board may determine, with such powers, preferences and rights as the Board may determine, or blank-check preferred
stock. Additionally, the resolutions providing for the issuance of any series of Preferred Stock may provide that such series shall
be superior or rank equally or be junior to the preferred stock of any other series to the extent permitted by law. This blank-check
preferred stock can be used for financing purposes or as an anti-takeover defense.
Advance Notice Provisions
Advance notice of stockholder nominations for
the election of directors and of business to be brought by stockholders before any meeting of the stockholders must be given in
the manner proscribed by the Bylaws of the Company as then in effect. Stockholders have the right, under Delaware law, to nominate
persons for election as directors and to make proposals on any matter that is proper for a stockholder vote at the annual meeting.
This bylaw requires a stockholder to provide advance notice before making nominations or making a proposal so the Board has adequate
time to prepare a response and communicate with other stockholders before the annual meeting.
Special Meetings of Stockholders
Special meetings of the stockholders may only
be called by the Board acting pursuant to a resolution adopted by a majority of the total number of authorized directors, regardless
of any vacancies. The business to be transacted at any special meeting of the stockholders shall be limited to matters relating
to the purpose or purposes stated in the notice. A company is less vulnerable to a takeover if it has special meeting limitations.
Liability of Directors
No director shall be personally liable to the
Company or its stockholders for any monetary damages for breach of fiduciary duty as a director except to the extent liability
is imposed by law for any breach of the director’s duty of loyalty to the Company or its stockholders, acts or omissions
not in good faith which involve intentional misconduct or knowing violation of law, under Section 174 or successor provisions of
the Delaware General Corporation Law (the “DGCL”) or for any transaction from which the director derived an
improper personal benefit.
Super Majority Stockholder Vote Required
for Certain Actions
In addition to any required vote under the
DGCL, the affirmative vote of the holders of shares of voting stock representing at least 80% of the voting power of all of the
then outstanding shares of the capital stock of the Company entitled to vote generally in the election of directors, voting together
as a single class, shall be required to amend, alter or repeal, or adopt any provision inconsistent with certain provisions of
the COI as provided therein.
Any director or the entire Board may be removed
from office at any time for cause by the affirmative vote of the holders of at least 80% of the voting power of all of the then-outstanding
shares of capital stock of the Company entitled to vote at an election of directors, voting together as a single class.
A copy of the COI is attached hereto as Exhibit
3.1 to this Current Report on Form 8-K and is incorporated herein by reference. The summary above is only a brief description of
the material terms of the COI, does not purport to be a complete description thereof and is qualified in its entirety by reference
to such exhibit.
Amended and Restated Bylaws
On January 6, 2015, and effective as of that
date, the Board approved and adopted the Company’s Amended and Rested Bylaws. The Amended and Restated Bylaws include additional
provisions for notice of stockholder business and nominations at stockholder meetings, additional indemnification measures and
other typical public company provisions, such as, advance stockholder notice provisions to nominate a director or raise business
at the Company’s annual meeting, provisions for the election and removal of directors and officers and the Company’s
policy with regard to transactions with interested parties, indemnification provisions pursuant to which members of the Board,
officers, employees and agents of the Company may be indemnified and held harmless by the Company and a forum selection bylaw providing
that, unless the Company consents in writing to the selection of an alternative forum, the sole and exclusive forum for all actions
against the Company shall be the State of Delaware.
A copy of the Amended and Restated Bylaws is
attached hereto as Exhibit 3.2 to this Current Report on Form 8-K and is incorporated herein by reference. The summary above is
only a brief description of the material terms of the Amended and Restated Bylaws, does not purport to be a complete description
thereof and is qualified in its entirety by reference to such exhibit.
Item
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information regarding the adoption of the
Company’s Amended and Restated Bylaws set forth under Item 3.03 is incorporated into this Item 5.03 by reference.
Item
5.07 Submission of Matters to a Vote of Security Holders.
The information regarding the approval by written
consent of the Company’s stockholders on November 24, 2014, which approval is effective as of January 9, 2015, of the filing
of the COI with the Secretary of State of the State of Delaware and the COI set forth under Item 3.03 is incorporated into this
Item 5.07 by reference.
Item
8.01 Other Events.
On January 9, 2015, the Company issued a press
release announcing the filing of the COI with the Secretary of State of the State of Delaware, the change of the Company’s
name and the adoption of the Amended and Restated Bylaws. A copy of the press release is attached as Exhibit 99.1 and is incorporated
herein by reference.
Neither the filing of the press release as
an exhibit to this report nor the inclusion in the press release of a reference to our internet address shall, under any circumstances,
be deemed to incorporate the information available at our internet address into this report. The information available at our internet
address is not part of this report or any other report filed by us with the Securities and Exchange Commission.
Item
9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number |
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Description |
3.1 |
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Certificate of Incorporation, filed on January 9, 2015 |
3.2 |
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Amended and Restated Bylaws, dated as of January 6, 2015 |
99.1 |
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Press Release dated January 9, 2015 |
SIGNATURES
Pursuant to the
requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
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VANTAGE mHEALTHCARE,
INC. |
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By: |
/s/
Joseph C. Peters |
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Name: |
Joseph C. Peters |
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Title: |
President |
Date: January 9, 2015 |
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CERTIFICATE
OF INCORPORATION
OF
VANTAGE
mHEALTHCARE, INC.
The
undersigned, a natural person, for the purpose of organizing a corporation for conducting the business and promoting the purposes
hereinafter stated, under the provisions and subject to the requirements of the laws of the State of Delaware (particularly Chapter
1, Title 8 of the Delaware Code and the acts amendatory thereof and supplemental thereto, and known, identified and referred to
as the “General Corporation Law of the State of Delaware”), hereby certifies that:
FIRST:
The name of the corporation is Vantage mHealthcare, Inc. (the “Corporation”).
SECOND:
The address of the registered office of the Corporation in the State of Delaware is 1811 Silverside Road, Wilmington, Delaware
19810, County of New Castle. The name of its registered agent at such address is Vcorp Services, LLC.
THIRD:
The purpose of the Corporation is to engage in any lawful act or activity or carry on any business for which corporations may
be organized under the Delaware General Corporation Law or any successor statute.
FOURTH:
The Corporation is to have perpetual existence.
FIFTH:
A.
Designation and Number of Shares.
The
total number of shares of all classes of stock which the Corporation shall have the authority to issue is 500,000,000 shares,
consisting of 450,000,000 shares of common stock, par value $0.001 (the “Common Stock”), and 50,000,000 shares
of preferred stock, par value $0.001 (the “Preferred Stock”).
The
number of authorized shares of Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares
thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the then-outstanding
shares of capital stock of the Corporation entitled to vote thereon, without a vote of the holders of the Preferred Stock, or
of any series thereof, unless a vote of any such holders is required pursuant to the terms of any Preferred Stock designation.
B.
Preferred Stock
1.
Shares of Preferred Stock may be issued in one or more series at such time or times and for such consideration as the Board of
Directors of the Corporation (the “Board of Directors”) may determine.
2.
Authority is hereby expressly granted to the Board of Directors to fix from time to time, by resolution or resolutions providing
for the establishment and/or issuance of any series of Preferred Stock, the designation and number of the shares of such series
and the powers, preferences and rights of such series, and the qualifications, limitations or restrictions thereof, to the fullest
extent such authority may be conferred upon the Board of Directors under the Delaware General Corporation Law. Without limiting
the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such
series shall be superior or rank equally or be junior to the Preferred Stock of any other series to the extent permitted by law.
C.
Common Stock.
1.
Dividends. Dividends may be declared and paid on the Common Stock from funds lawfully available therefor if, as and when
determined by the Board of Directors in its sole discretion, subject to provisions of law, any provision of this Certificate of
Incorporation, as amended from time to time, and subject to the relative rights and preferences of any shares of Preferred Stock
authorized, issued and outstanding hereunder. The term “Certificate of Incorporation” as used herein shall mean the
Certificate of Incorporation of the Corporation as amended from time to time.
2.
Voting. The holders of the Common Stock are entitled to one vote for each share held; provided, however,
that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate
of Incorporation (including any certificate of designation relating to Preferred Stock) 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
as a class with the holders of one or more other such series, to vote thereon by law or pursuant to this Certificate of Incorporation
(including any certificate of designation relating to Preferred Stock).
SIXTH:
The following provisions are inserted for the management of the business and the conduct of the affairs of the Corporation, and
for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
A.
The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition
to the powers and authority expressly conferred upon them by statute or by this Certificate of Incorporation or the Bylaws of
the Corporation as in effect from time to time, the directors are hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation.
B.
The directors of the Corporation need not be elected by written ballot unless the Bylaws, as amended from time to time, so provide.
C.
Special meetings of the stockholders may only be called by the Board of Directors acting pursuant to a resolution adopted by a
majority of the Whole Board. For the purposes of this Certificate of Incorporation, the term “Whole Board”
means the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships.
Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated
in the notice of meeting.
SEVENTH:
A.
Subject to the rights of the holders of shares of any series of Preferred Stock then outstanding to elect additional directors
under specified circumstances, the number of directors shall be fixed from time to time exclusively by the Board of Directors
pursuant to a resolution adopted by a majority of the Whole Board.
B.
Subject to the rights of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting
from any increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or other cause shall, unless otherwise required by law or by resolution of the
Board of Directors, be filled only by a majority vote of the directors then in office even though less than a quorum, or by a
sole remaining director, and not by stockholders, and directors so chosen shall serve for a term expiring at the annual meeting
of stockholders at which the term of office of the class to which they have been chosen expires or until such director’s
successor shall have been duly elected and qualified. No decrease in the authorized number of directors shall shorten the term
of any incumbent director.
C.
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, as amended from time to time,
of the Corporation.
D.
Subject to the rights of the holders of any series of Preferred Stock then outstanding, any director, or the entire Board of Directors,
may be removed from office at any time only for cause and only by the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote at an election
of directors, voting together as a single class.
EIGHTH:
In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt,
amend or repeal the Bylaws or adopt new Bylaws without any action on the part of the stockholders; provided that any Bylaw adopted
or amended by the Board of Directors, and any powers thereby conferred, may be amended, altered or repealed by the stockholders.
NINTH:
A.
Each person who was or is made a party or is threatened to be made a party to or is otherwise involved (including, without limitation,
as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director,
officer, or trustee of another corporation, or of a partnership, joint venture, trust or other enterprise, 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 or trustee or in any other capacity while serving as a director,
officer or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by the Delaware
General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent
that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation
to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection
therewith; provided, however, that, except as provided in Paragraph C of this Article NINTH with respect to proceedings to enforce
rights to indemnification or an advancement of expenses or as otherwise required by law, the Corporation shall not be required
to indemnify or advance expenses to any such Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee
unless such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.
B.
In addition to the right to indemnification conferred in Paragraph A of this Article NINTH, an Indemnitee shall also have the
right to be paid by the Corporation the expenses (including attorney’s fees) incurred in defending any such proceeding in
advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, an advancement of
expenses incurred by an Indemnitee in his capacity as a director or officer (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
delivery to the Corporation of an undertaking, by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no further right to appeal that such Indemnitee is not
entitled to be indemnified for such expenses under this Paragraph B or otherwise.
C.
If a claim under Paragraph A or B of this Article NINTH is not paid in full by the Corporation within sixty (60) days after a
written claim 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 twenty (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 expenses of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee to enforce a right to indemnification
hereunder (but not in a suit brought by the Indemnitee to enforce a right to an advancement of expenses) it shall be a defense
that, and (ii) 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 adjudication that, the Indemnitee has not met any applicable
standard for indemnification set forth in the Delaware General Corporation Law. 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 Delaware General Corporation Law, nor an actual
determination by the Corporation (including 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, 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 brought 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 NINTH
or otherwise shall be on the Corporation.
D.
The rights to indemnification and to the advancement of expenses conferred in this Article NINTH shall not be exclusive of any
other right which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation
as amended from time to time, the Corporation’s Bylaws, any agreement, any vote of stockholders or disinterested directors
or otherwise.
E.
The Corporation may maintain insurance, at its expense, to protect itself and 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
Delaware General Corporation Law.
F.
The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and
the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article
NINTH with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
G.
The rights conferred upon Indemnitees in this Article NINTH 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 the Indemnitee’s heirs, executors
and administrators. Any amendment, alteration or repeal of this Article NINTH that adversely affects any right of an Indemnitee
or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any proceeding involving
any occurrence or alleged occurrence of any action or omission to act that took place prior to any such amendment, alteration
or repeal.
H.
If any word, clause, provision or provisions of this Article NINTH shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Article NINTH (including,
without limitation, each portion of any section of this Article NINTH containing any such provision held to be invalid, illegal
or unenforceable, that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired
thereby; and (ii) to the fullest extent possible, the provisions of this Article NINTH (including, without limitation, each such
portion of any section of this Article NINTH 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.
TENTH:
No director shall be personally liable to the Corporation or its stockholders for any monetary damages for breaches of fiduciary
duty as a director; provided that this provision shall not eliminate or limit the liability of a director, to the extent that
such liability is imposed by applicable law, (i) for any breach of the director’s duty of loyalty to the Corporation or
its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation
of law; (iii) under Section 174 or successor provisions of the Delaware General Corporation Law; or (iv) for any transaction from
which the director derived an improper personal benefit. No amendment to or repeal of this provision shall apply to or have any
effect on the liability or alleged liability of any director for or with respect to any acts or omissions of such director occurring
prior to such amendment or repeal. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating
or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited
to the fullest extent permitted by the Delaware General Corporation Law, as so amended. All references in this Article TENTH to
a director shall also be deemed to refer to any such director acting in his or her capacity as a Continuing Director (as defined
in Article TWELFTH).
ELEVENTH:
The Corporation reserves the right to amend or repeal any provision contained in this Certificate of Incorporation in the manner
prescribed by the Delaware General Corporation Law and all rights conferred upon stockholders are granted subject to this reservation;
provided that in addition to the vote of the holders of any class or series of stock of the Corporation required by law or by
this Certificate of Incorporation, the affirmative vote of the holders of shares of voting stock of the Corporation representing
at least eighty percent (80%) of the voting power of all of the then outstanding shares of the capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter
or repeal, or adopt any provision inconsistent with, Articles SEVENTH, EIGHTH, NINTH, TENTH, this Article ELEVENTH and Article
TWELFTH of this Certificate of Incorporation.
TWELFTH:
The Board of Directors is expressly authorized to cause the Corporation to issue rights pursuant to Section 157 of the Delaware
General Corporation Law and, in that connection, to enter into any agreements necessary or convenient for such issuance, and to
enter into other agreements necessary and convenient to the conduct of the business of the Corporation. Any such agreement may
include provisions limiting, in certain circumstances, the ability of the Board of Directors of the Corporation to redeem the
securities issued pursuant thereto or to take other action thereunder or in connection therewith unless there is a specified number
or percentage of Continuing Directors then in office. Pursuant to Section 141(a) of the Delaware General Corporation Law, the
Continuing Directors shall have the power and authority to make all decisions and determinations, and exercise or perform such
other acts that any such agreement provides that such Continuing Directors shall make, exercise or perform. For purposes of this
Article TWELFTH and any such agreement, the term, “Continuing Directors,” means (1) those directors who were
members of the Board of Directors of the Corporation at the time the Corporation entered into such agreement and any director
who subsequently becomes a member of the Board of Directors, if such director’s nomination for election to the Board of
Directors is recommended or approved by the majority vote of the Continuing Directors then in office or (2) such members of the
Board of Directors designated in, or in the manner provided in, such agreement as Continuing Directors.
(Remainder
of page intentionally left blank.)
IN
WITNESS WHEREOF, I have executed this Certificate of Incorporation as of January 8th, 2015.
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VANTAGE
mHEALTHCARE, INC. |
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By: |
/s/
Joseph Peters |
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Joseph
Peters |
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Sole
Incorporator |
AMENDED
AND RESTATED BYLAWS
OF
VANTAGE
mHEALTHCARE, INC.
(the
“Corporation”)
As
of January 6, 2015
ARTICLE
I: MEETINGS OF STOCKHOLDERS
SECTION
1 - ANNUAL MEETINGS
An
annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction
of such other business as may properly come before the meeting, shall be held at such place, on such date, and at such time as
the Board of Directors shall fix. The Board of Directors may, in its sole discretion, determine that the meeting shall not be
held at any place, but instead shall be held solely by means of remote communication as provided under the Delaware General Corporation
Law.
SECTION
2 - SPECIAL MEETINGS
Special
meetings of the stockholders of the Corporation may be called only by the Board of Directors pursuant to a resolution adopted
by a majority of the Whole Board. For the purposes of these Bylaws, the term “Whole Board” shall mean the total
number of authorized directors whether or not there exist any vacancies in previously authorized directorships. Special meetings
of the stockholders may be held at such place within or without the State of Delaware as may be stated in such resolution. The
Board of Directors or the person calling the meeting may, in its or his sole discretion, determine that the meeting shall not
be held at any place, but instead shall be held solely by means of remote communication as provided under the Delaware General
Corporation Law.
SECTION
3 - PLACE OF MEETINGS
Meetings
of stockholders shall be held at the registered office of the Corporation, or at such other places, within or without the State
of Delaware as the Board of Directors may from time to time fix.
SECTION
4 - NOTICE OF MEETINGS
Notice
of the place, if any, date, and time of all meetings of the stockholders, and the means of remote communications, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at such meeting, shall be given, not less than ten
(10) nor more than sixty (60) days before the date on which the meeting is to be held, to each stockholder entitled to vote at
such meeting, except as otherwise provided herein or required by law (meaning, here and hereinafter, as required from time to
time by the Delaware General Corporation Law or the Certificate of Incorporation of the Corporation, as amended and restated from
time to time).
When
a meeting is adjourned to another place, if any, date or time, notice need not be given of the adjourned meeting if the place,
if any, date and time thereof, and the means of remote communications, if any, by which stockholders and proxyholders 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; provided,
however, that if the date of any adjourned meeting is more than thirty (30) days after the date for which the meeting was originally
noticed, or if a new record date is fixed for the adjourned meeting, notice of the place, if any, date, and time of the adjourned
meeting, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in
person and vote at such adjourned meeting, shall be given in conformity herewith. At any adjourned meeting, any business may be
transacted which might have been transacted at the original meeting.
SECTION
5 - QUORUM
At
any meeting of the stockholders, the holders of a majority of the voting power of all of the shares of the stock entitled to vote
at the meeting, present in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that
the presence of a larger number may be required by law or by rules of any stock exchange upon which the Corporation’s securities
are listed. Where a separate vote by a class or classes is required, a majority of the voting power of the shares of such class
or classes present in person or represented by proxy shall constitute a quorum entitled to take action with respect to that vote
on that matter.
If
a quorum shall fail to attend any meeting, the chairman of the meeting may adjourn the meeting to another place, if any, date,
or time.
SECTION
6 – VOTING AND PROXIES
At
any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument
in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting. Any copy,
facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to this Section 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.
All
voting, including on the election of directors but excepting where otherwise required by law, may be by voice vote. Any vote not
taken by voice shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other
information as may be required under the procedure established for the meeting. The Corporation may, and to the extent required
by law, shall, in advance of any meeting of stockholders, appoint one or more inspectors to act at the meeting and make a written
report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to
act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting may, and to
the extent required by law, shall, appoint one or more inspectors to act at the meeting. Each inspector, before entering upon
the discharge of his duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his ability. Every vote taken by ballots shall be counted by a duly appointed inspector or inspectors.
Except
as otherwise provided in the terms of any class or series of Preferred Stock of the Corporation, all elections at any meeting
of stockholders shall be determined by a plurality of the votes cast, and except as otherwise required by law, these Bylaws or
the rules of any stock exchange upon which the Corporation’s securities are listed, all other matters determined by stockholders
at a meeting shall be determined by a majority of the votes cast affirmatively or negatively.
SECTION
7 – STOCK LIST
A
complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of
stock and showing the address of each such stockholder and the number of shares registered in his or her name, shall be open to
the examination of any such stockholder for a period of at least ten (10) days prior to the meeting in the manner provided by
law.
The
stock list shall also be open to the examination of any stockholder during the whole time of the meeting as provided by law. Such
list shall presumptively determine the identity of the stockholders entitled to examine such stock list and to vote at the meeting
and the number of shares held by each of them.
SECTION
8 – ORGANIZATION AND CONDUCT OF BUSINESS
The
Chairman of the Board of Directors or, in his or her absence, the Chief Executive Officer of the Corporation or, in his or her
absence, the President or, in his or her absence, such person as the Board of Directors may have designated, shall call to order
any meeting of the stockholders and shall preside at and act as chairman of the meeting. In the absence of the Secretary of the
Corporation, the secretary of the meeting shall be such person as the chairman of the meeting appoints. The chairman of any meeting
of stockholders shall determine the order of business and the procedures at the meeting, including such regulation of the manner
of voting and the conduct of discussion as he or she deems to be appropriate. The chairman of any meeting of stockholders shall
have the power to adjourn the meeting to another place, if any, date and time. The date and time of the opening and closing of
the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting.
SECTION
9 – NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS
A.
Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (a) pursuant to the Corporation’s notice of meeting or proxy materials
with respect to such meeting, (b) by or at the direction of the Board of Directors or (c) by any stockholder of the Corporation
who was a stockholder of record at the time of giving of notice provided for in this Section, who is entitled to vote at the meeting
and who complies with the notice procedures set forth in this Section.
B.
Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant
to the notice of meeting given pursuant to Section 2 above. The notice of such special meeting shall include the purpose for which
the meeting is called. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders
at which directors are to be elected (a) by or at the direction of the Board of Directors or (b) provided that the Board of Directors
has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Section, who shall be entitled to vote at the meeting and who complies
with the notice procedures set forth in this Section.
C.
Certain Matters Pertaining to Stockholder Business and Nominations
(1) For
nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph
A of this Section or a special meeting pursuant to paragraph B of this Section, (1) the stockholder must have given timely notice
thereof in writing to the Secretary of the Corporation, (2) such other business must otherwise be a proper matter for stockholder
action under the Delaware General Corporation Law, (3) if the stockholder, or the beneficial owner on whose behalf any such proposal
or nomination is made, has provided the Corporation with a Solicitation Notice, as that term is defined in this paragraph, such
stockholder or beneficial owner must, in the case of a proposal, have delivered a proxy statement and form of proxy to holders
of at least the percentage of the Corporation’s voting shares required under applicable law to carry any such proposal,
or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage
of the Corporation’s voting shares reasonably believed by such stockholder or beneficial holder to be sufficient to elect
the nominee or nominees proposed to be nominated by such stockholder, and must, in either case, have included in such materials
the Solicitation Notice and (4) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section,
the stockholder or beneficial owner proposing such business or nomination must not have solicited a number of proxies sufficient
to have required the delivery of such a Solicitation Notice under this Section.
To
be timely, a stockholder’s notice pertaining to an annual meeting shall be delivered to the Secretary at the principal executive
offices of the Corporation not less than ninety (90) or more than one-hundred and twenty (120) days prior to the first anniversary
(the “Anniversary”) of the date of the preceding year’s annual meeting; provided, however,
that in the event that the date of the annual meeting is more than thirty (30) days before or more than thirty (30) days after
the Anniversary, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the one-hundred
and twentieth (120th) day prior to such annual meeting and not later than the close of business on the later of the ninetieth
(90th) day prior to such annual meeting or the close of business on the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made by the Corporation. Such stockholder’s notice for an annual meeting or a special
meeting shall set forth:
(a)
as to each person whom the stockholder proposes to nominate for election or reelection as a director:
(i)
all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors,
or is otherwise required, in each case, pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) (including such person’s written consent to being named in the proxy statement as a nominee
and to serving as a director if elected);
(ii)
a description of all direct and indirect compensation and other material monetary agreements, arrangements and understandings
during the past three years, and any other material relationships, between or among such stockholder and beneficial owner, if
any, and their respective affiliates and associates, on the one hand, and each proposed nominee, and his or her respective affiliates
and associates, on the other hand, including, without limitation, all information that would be required to be disclosed pursuant
to Item 404 of Regulation S-K promulgated under the Securities Act of 1933, as amended, if the stockholder making the nomination
and any beneficial owner on whose behalf the nomination is made, if any, or any affiliate or associate thereof, were the “registrant”
for purposes of such rule and the nominee were a director or executive officer of such registrant;
(iii)
to the extent known by the stockholder, the name and address of any other securityholder of the Corporation who owns, beneficially
or of record, any securities of the Corporation and who supports any nominee proposed by such stockholder; and
(iv)
with respect to each nominee for election or reelection to the Board of Directors, include a completed and signed questionnaire,
representation and agreement required by paragraph G of this Article;
(b) as
to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to
be brought before the meeting, including the text of any resolutions proposed for consideration, the reasons for conducting such
business at the meeting, any material interest in such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made, and to the extent known by the stockholder, the name and address of any other securityholder of the
Corporation who owns, beneficially or of record, any securities of the Corporation and who supports any matter such stockholder
intends to propose; and
(c)
as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made:
(i)
the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner;
(ii)
(A) the class or series and number of shares of the Corporation which are, directly or indirectly, owned beneficially and of record
by such stockholder and such beneficial owner, (B) any option, warrant, convertible security, stock appreciation right, or similar
right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series
of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the
Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of capital
stock of the Corporation or otherwise (a “Derivative Instrument”) directly or indirectly owned beneficially
by such stockholder and any other direct or indirect opportunity to profit or share in any profit derived from any increase or
decrease in the value of shares of the Corporation, (C) any proxy, contract, arrangement, understanding, or relationship pursuant
to which such stockholder has a right to vote any shares of any security of the Corporation, (D) any short interest in any security
of the Corporation (for purposes of these Bylaws, a person shall be deemed to have a short interest in a security if such person
directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit
or share in any profit derived from any decrease in the value of the subject security), (E) any rights to dividends on the shares
of the Corporation owned beneficially by such stockholder that are separated or separable from the underlying shares of the Corporation,
(F) any proportionate interest in shares of the Corporation or Derivative Instruments held, directly or indirectly, by a general
or limited partnership in which such stockholder is a general partner or, directly or indirectly, beneficially owns an interest
in a general partner, and (G) any performance-related fees (other than an asset-based fee) that such stockholder is entitled to
based on any increase or decrease in the value of shares of the Corporation or Derivative Instruments, if any, as of the date
of such notice, including without limitation any such interests held by members of such stockholder’s immediate family sharing
the same household (which information shall be supplemented by such stockholder and beneficial owner, if any, not later than ten
(10) days after the record date for the meeting to disclose such ownership as of the record date; provided that if such date is
after the date of the meeting, not later than the day prior to the meeting);
(iii)
any other information relating to such stockholder and beneficial owner, if any, that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or
for the election of directors in a contested election pursuant to Regulation 14A under the Exchange Act and the rules and regulations
promulgated thereunder;
(iv)
a description of all agreements, arrangements and understandings between such stockholder and beneficial owner, if any, and any
other person or persons (including their names) in connection with the proposal of such business by such stockholder; and
(v)
a statement whether or not either such stockholder or beneficial owner intends to deliver a proxy statement and form of proxy
to holders of, in the case of a proposal, at least the percentage of the Corporation’s voting shares required under applicable
law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Corporation’s
voting shares to elect such nominee or nominees (an affirmative statement of such intent, a “Solicitation Notice”).
(2) Notwithstanding
anything in the second sentence of paragraph C(1) of this Section to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation is increased and there is no public announcement by the Corporation naming
all of the nominees for director or specifying the size of the increased Board of Directors at least fifty-five (55) days prior
to the Anniversary (or, if the annual meeting is held more than thirty (30) days before or thirty (30) days after the Anniversary,
at least fifty-five (55) days prior to such annual meeting), a stockholder’s notice required by this Section shall also
be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered
to the Secretary at the principal executive office of the Corporation not later than the close of business on the tenth (10th)
day following the day on which such public announcement is first made by the Corporation.
(3) In
the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board
of Directors, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as
specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph C(1) of this Section
shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the ninetieth (90th)
day prior to such special meeting nor later than the close of business on the later of the sixtieth (60th) day prior to such special
meeting, or the tenth (10th) day following the day on which public announcement is first made of the date of the special meeting
and of the nominees proposed by the Board of Directors to be elected at such meeting.
D.
Only such persons who are nominated in accordance with the procedures set forth in this Section shall be eligible to serve
as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting
in accordance with the procedures set forth in this Section. Except as otherwise provided by law or these Bylaws, the chairman
of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the
meeting was made or proposed, as the case may be, in accordance with the procedures set forth in these Bylaws and, if any proposed
nomination or business is not in compliance herewith, to declare that such defective proposal or nomination shall be disregarded.
E.
For purposes of this Section, “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 Section 13, 14 or 15(d) of the Exchange Act.
F.
Notwithstanding the foregoing provisions of this Section, 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
shall be deemed to affect any rights (i) of stockholders to request inclusion of proposals in the Corporation’s proxy statement
pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders of any series of Preferred Stock to elect directors under
specified circumstances.
G.
In addition to the requirements set forth elsewhere in these Bylaws, to be eligible to be a nominee for election or reelection
as a director of the Corporation, a person must deliver, in accordance with the time periods prescribed for delivery of notice
under Section 10(C)(1) of this Article, to the Secretary of the Corporation at the principal executive offices of the Corporation
a completed and signed questionnaire with respect to the background and qualification of such person and the background of any
other person or entity on whose behalf the nomination is being made (which questionnaire shall be provided by the Secretary upon
written request) and a written representation and agreement (in the form provided by the Secretary upon written request) that
such person (i) is not and will not become a party to (A) any agreement, arrangement or understanding with, and has not given
any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Corporation, will
act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed to the Corporation
or (B) any Voting Commitment that could limit or interfere with such person’s ability to comply, if elected as a director
of the Corporation, with such person’s fiduciary duties under applicable law, (ii) is not and will not become a party to
any agreement, arrangement or understanding with any person or entity other than the Corporation with respect to any direct or
indirect compensation, reimbursement or indemnification in connection with service or action as a director that has not been disclosed
therein, and (iii) in such person’s individual capacity and on behalf of any person or entity on whose behalf the nomination
is being made, would be in compliance, if elected as a director of the Corporation, and will comply with, applicable law and all
applicable publicly disclosed corporate governance, code of conduct and ethics, conflict of interest, corporate opportunities,
trading and any other policies and guidelines of the Corporation applicable to directors.
H.
Notwithstanding the foregoing provisions of this Section, unless otherwise required by law, if the stockholder (or a qualified
representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to make
its nomination or propose any other matter, such nomination shall be disregarded and such other proposed matter shall not be transacted,
even if proxies in respect of such vote have been received by the Corporation. For purposes of this Section, to be considered
a “qualified representative” of the stockholder, a person must be a duly authorized officer, manager or partner
of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by
such stockholder to act for such stockholder as proxy at the meeting of stockholders, and such person must produce such writing
or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the commencement of the meeting
of stockholders.
ARTICLE
II: BOARD OF DIRECTORS
SECTION
1 - NUMBER, TERM, ELECTION AND QUALIFICATIONS
A. The
business and affairs of the Corporation shall be managed by or under the direction of its Board of Directors. The Board of Directors
may adopt such rules and procedures, not inconsistent with the Certificate of Incorporation, these Bylaws or applicable law, as
it may deem proper for the conduct of its meetings and the management of the Corporation.
B. Subject
to the rights of the holders of any series of Preferred Stock then outstanding to elect additional directors under specified circumstances,
the number of directors shall be fixed from time to time exclusively by the Board of Directors pursuant to a resolution adopted
by a majority of the Whole Board. Each director shall hold office until a successor is duly elected and qualified or until the
director’s earlier death, resignation, disqualification or removal.
C. The
Chairman of the Board and any Vice Chairman appointed to act in the absence of the Chairman, if any, shall be elected by and from
the Board of Directors. The Chairman of the Board shall preside at all meetings of the Board of Directors and stockholders at
which he or she is present and shall have such authority and perform such duties as may be prescribed by these Bylaws or from
time to time be determined by the Board of Directors.
SECTION
2 – VACANCIES AND NEWLY CREATED DIRECTORSHIPS
Subject
to the rights of the holders of any series of Preferred Stock then outstanding, newly created directorships resulting from any
increase in the authorized number of directors or any vacancies in the Board of Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall, unless otherwise required by law or by resolution of the Board of
Directors, be filled only by a majority vote of the directors then in office even though less than a quorum, or by a sole remaining
director and not by stockholders, and directors so chosen shall serve for a term expiring at the annual meeting of stockholders
at which the term of office of the class to which they have been chosen expires or until such director’s successor shall
have been duly elected and qualified. No decrease in the authorized number of directors shall shorten the term of any incumbent
director. In the event of a vacancy in the Board of Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board of Directors until the vacancy is filled.
SECTION
3 – DUTIES, POWERS AND REMUNERATION
The
Board of Directors may, except as otherwise required by law, exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation, including, without limiting the generality of the foregoing, the unqualified power:
(1) To
declare dividends from time to time in accordance with law;
(2) To
purchase or otherwise acquire any property, rights or privileges on such terms as it shall determine;
(3) To
authorize the creation, making and issuance, in such form as it may determine, of written obligations of every kind, negotiable
or non-negotiable, secured or unsecured, to borrow funds and guarantee obligations, and to do all things necessary in connection
therewith;
(4) To
remove any officer of the Corporation with or without cause, and from time to time to devolve the powers and duties of any officer
upon any other person for the time being;
(5) To
confer upon any officer of the Corporation the power to appoint, remove and suspend subordinate officers, employees and agents;
(6) To
adopt from time to time such stock, option, stock purchase, bonus or other compensation plans for directors, officers, employees
and agents of the Corporation and its subsidiaries as it may determine;
(7) To
adopt from time to time such insurance, retirement, and other benefit plans for directors, officers, employees and agents of the
Corporation and its subsidiaries as it may determine; and,
(8) To
adopt from time to time regulations, not inconsistent with these Bylaws, for the management of the Corporation’s business
and affairs.
Unless
otherwise restricted by the certificate of incorporation, the Board of Directors shall have the authority to fix the compensation
of the directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors or paid a stated salary or paid 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 special or standing committees may be allowed compensation for attending committee meetings.
SECTION
4 - MEETINGS OF DIRECTORS
A.
Regular meetings of the Board of Directors shall be held at such place or places, on such date or dates, and at such time
or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular
meeting shall not be required.
B.
Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors or the Chief Executive
Officer, and shall be called by the Secretary if requested by a majority of the Whole Board, and shall be held at such place,
on such date, and at such time as he or she or they shall fix. Notice of the place, date, and time of each such special meeting
shall be given to each director by whom it is not waived by mailing written notice not less than five (5) days before the meeting
or orally, by telegraph, telex, cable, telecopy or electronic transmission given not less than twenty-four (24) hours before the
meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
C.
At any meeting of the Board of Directors, a majority of the total number of the Whole Board shall constitute a quorum for
all purposes. If a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to another place,
date, or time, without further notice or waiver thereof.
D.
Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken
at any meeting of the Board of Directors may be taken without a meeting, if all members of the Board consent thereto in writing
or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes
of proceedings of the Board. 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.
E.
Members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by
means of conference telephone or other communications equipment by means of which all persons participating in the meeting can
hear each other and such participation shall constitute presence in person at such meeting.
F.
At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time
to time determine, and all matters shall be determined by the vote of a majority of the directors present, except as otherwise
provided herein or required by law.
SECTION
5 – RESIGNATION AND REMOVAL
Any
director may resign at any time upon notice given in writing or by electronic transmission to the Corporation at its principal
place of business or to the Chairman of the Board, Chief Executive Officer, President or Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. Subject
to the rights of the holders of any series of Preferred Stock then outstanding, any director, or the entire Board of Directors,
may be removed from office at any time only for cause and only by the affirmative vote of the holders of at least eighty percent
(80%) of the voting power of all of the then outstanding shares of the Corporation then entitled to vote at an election of directors,
voting together as a single class.
SECTION
6 - COMMITTEES
A.
The Board of Directors, by a vote of a majority of the Board of Directors, may from time to time designate committees of the
Board, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board and shall,
for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating,
if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee.
Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers
and authority of the Board of Directors in the management of the business and affairs of the Corporation to the fullest extent
authorized by law. In the absence or disqualification of any member of any committee and any alternate member in his or her place,
the member or members of the committee present at the meeting and not disqualified from voting, whether or not he or she or they
constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place
of the absent or disqualified member.
B.
Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith,
except as otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings;
one-third (1/3) of the members of any committee shall constitute a quorum unless the committee shall consist of one (1) or two
(2) members, in which event one (1) member shall constitute a quorum; and all matters shall be determined by a majority vote of
the members present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing
or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes
of the proceedings of such 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.
ARTICLE
III: OFFICERS
SECTION
1 - NUMBER, QUALIFICATION, ELECTION AND TERM OF OFFICE AND REMOVAL
A.
The officers of the Corporation shall consist of a Chief Executive Officer, President, Chief Financial Officer, Treasurer,
Secretary and such other officers as the Board of Directors or the Chief Executive Officer may determine, including, but not limited
to, one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries. The salaries of officers elected by the Board
of Directors shall be fixed from time to time by the Board of Directors or by such officers as may be designated by resolution
of the Board of Directors.
B.
No officer need be a director. Two or more offices may be held by any one person. If required by vote of the Board of Directors,
an officer shall give bond to the Corporation for the faithful performance of his or her duties, in such form and amount and with
such sureties as the Board of Directors may determine. The premiums for such bonds shall be paid by the Corporation.
C.
The Chief Executive Officer, President, Chief Financial Officer, Treasurer and the Secretary shall be elected annually by
the Board of Directors at their first meeting following the annual meeting of the stockholders. The Board of Directors or the
Chief Executive Officer, may, from time to time, elect or appoint such other officers as it or he or she may determine, including,
but not limited to, one or more Vice Presidents, Assistant Treasurers and Assistant Secretaries.
D.
Each officer elected or appointed by the Board of Directors shall hold office until the first meeting of the Board of Directors
following the next annual meeting of the stockholders and until his or her successor is elected or appointed and qualified, or
until he or she dies, resigns, is removed or becomes disqualified, unless a shorter term is specified in the vote electing or
appointing said officer. Each officer appointed by the Chief Executive Officer shall hold office until his or her successor is
elected or appointed and qualified, or until he or she dies, resigns, is removed or becomes disqualified, unless a shorter term
is specified by any agreement or other instrument appointing such officer. Any officer may resign by notice given in writing or
by electronic transmission of his or her resignation to the Chief Executive Officer, the President, or the Secretary, or to the
Board of Directors at a meeting of the Board. Such resignation shall be effective upon receipt unless it is specified to be effective
at some other time or upon the happening of some other event. Any officer elected or appointed by the Board of Directors may be
removed from office with or without cause only by vote of a majority of the directors. Any officer appointed by the Chief Executive
Officer may be removed with or without cause by the Chief Executive Officer or by vote of a majority of the directors then in
office.
SECTION
2 – CHIEF EXECUTIVE OFFICER
The
Chief Executive Officer shall be the chief executive officer of the Corporation and shall, subject to the direction of the Board
of Directors, have the responsibility for the general management and control of the business and affairs of the Corporation. Unless
otherwise provided by resolution of the Board of Directors, in the absence of the Chairman of the Board, the Chief Executive Officer
shall preside at all meetings of the stockholders and, if a director, meetings of the Board of Directors. The Chief Executive
Officer shall have general supervision and direction of all of the other officers (other than the Chairman of the Board or any
Vice Chairman), employees and agents of the Corporation. The Chief Executive Officer shall also have the power and authority to
determine the duties of all officers, employees and agents of the Corporation, shall determine the compensation of any officers
whose compensation is not established by the Board of Directors and shall have the power and authority to sign all stock certificates,
contracts and other instruments of the Corporation which are authorized.
SECTION
3 – PRESIDENT
Except
for meetings at which the Chief Executive Officer or the Chairman of the Board, if any, presides, the President shall, if present,
preside at all meetings of stockholders, and if a director, at all meetings of the Board of Directors. The President shall, subject
to the control and direction of the Chief Executive Officer and the Board of Directors, have and perform such powers and duties
as may be prescribed by these Bylaws or from time to time be determined by the Chief Executive Officer or the Board of Directors.
The President shall have power to sign all stock certificates, contracts and other instruments of the Corporation which are authorized.
In the absence of a Chief Executive Officer, the President shall be the chief executive officer of the Corporation and shall,
subject to the direction of the Board of Directors, have responsibility for the general management and control of the business
and affairs of the Corporation and shall have general supervision and direction of all of the officers (other than the Chairman
of the Board or any Vice Chairman or the Chief Executive Officer), employees and agents of the Corporation.
SECTION
4 – VICE PRESIDENTS
The
Vice Presidents, if any, in the order of their election, or in such other order as the Board of Directors or the Chief Executive
Officer may determine, shall have and perform the powers and duties of the President (or such of the powers and duties as the
Board of Directors or the Chief Executive Officer may determine) whenever the President is absent or unable to act. The Vice Presidents,
if any, shall also have such other powers and duties as may from time to time be determined by the Board of Directors or the Chief
Executive Officer.
SECTION
5 – CHIEF FINANCIAL OFFICER, TREAUSRER AND ASSISTANT TREASURERS
The
Chief Financial Officer shall, subject to the control and direction of the Board of Directors and the Chief Executive Officer,
be the chief financial officer of the Corporation and shall have and perform such powers and duties as may be prescribed in these
Bylaws or be determined from time to time by the Board of Directors and the Chief Executive Officer. All property of the Corporation
in the custody of the Chief Financial Officer shall be subject at all times to the inspection and control of the Board of Directors
and the Chief Executive Officer. The Chief Financial Officer shall have the responsibility for maintaining the financial records
of the Corporation. The Chief Financial Officer shall make such disbursements of the funds of the Corporation as are authorized
and shall render from time to time an account of all such transactions and of the financial condition of the Corporation. Unless
the Board of Directors has designated another person as the Corporation’s Treasurer, the Chief Financial Officer shall also
be the Treasurer. Unless otherwise voted by the Board of Directors, the Treasurer (if different than the Chief Financial Officer)
and each Assistant Treasurer, if any, shall have and perform the powers and duties of the Chief Financial Officer whenever the
Chief Financial Officer is absent or unable to act, and may at any time exercise such of the powers of the Chief Financial Officer,
and such other powers and duties, as may from time to time be determined by the Board of Directors, the Chief Executive Officer
or the Chief Financial Officer.
SECTION
6 – SECRETARY AND ASSISTANT SECRETARIES
The
Board of Directors or the Chief Executive Officer shall appoint a Secretary and, in his or her absence, an Assistant Secretary.
Unless otherwise directed by the Board of Directors, the Secretary or, in his or her absence, any Assistant Secretary, shall attend
all meetings of the directors and stockholders and shall record all votes of the Board of Directors and stockholders and minutes
of the proceedings at such meetings. The Secretary or, in his or her absence, any Assistant Secretary, shall notify the directors
of their meetings, and shall have and perform such other powers and duties as may from time to time be determined by the Board
of Directors. If the Secretary or an Assistant Secretary is elected but is not present at any meeting of directors or stockholders,
a temporary Secretary may be appointed by the directors or the Chief Executive Officer at the meeting.
SECTION
7 – BOND
If
required by the Board of Directors, any officer shall give the Corporation a bond in such sum and with such surety or sureties
and upon such terms and conditions as shall be satisfactory to the Board of Directors, including without limitation a bond for
the faithful performance of the duties of his office and for the restoration to the Corporation of all books, papers, vouchers,
money and other property of whatever kind in his or her possession or under his control and belonging to the Corporation.
SECTION
8 – ACTION WITH RESPECT TO SECURITIES OF OTHER CORPORATIONS
Unless
otherwise directed by the Board of Directors or the Chief Executive Officer, the Chief Executive Officer, the President, the Chief
Financial Officer or the Treasurer shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy,
at any meeting of stockholders of or with respect to any action of stockholders of any other corporation in which this Corporation
may hold securities and otherwise to exercise any and all rights and powers which this Corporation may possess by reason of its
ownership of securities in such other corporation.
ARTICLE
IV: SHARES OF STOCK
SECTION
1 – CERTIFICATED AND UNCERTIFICATED STOCK
Shares
of the Corporation’s stock may be certificated or uncertificated, as provided under the General Corporation Law of the State
of Delaware, and shall be entered in the books of the Corporation and registered as they are issued. Any certificates representing
shares of stock shall be in such form as the Board of Directors shall prescribe, certifying the number and class of shares of
the stock owned by the stockholder. Any certificates issued to a stockholder of the Corporation shall bear the name of the Corporation
and shall be signed by the Chairman of the Board of Directors, or the President or a Vice President, and by the Treasurer or an
Assistant Treasurer, or the Secretary or an Assistant Secretary. Any or all of the signatures on the certificate may be by facsimile.
In
the event of the loss, theft or destruction of any certificate of stock, the Corporation may issue a new certificate of stock
or uncertificated shares in place of any certificate previously issued by the Corporation pursuant to such regulations as the
Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory
bond or bonds of indemnity.
SECTION
2 - TRANSFERS OF STOCK
Transfers
of stock shall be made only upon the transfer books of the Corporation kept at an office of the Corporation or by transfer agents
designated to transfer shares of the stock of the Corporation. Except where a certificate is issued in accordance with Section
1 of this Article of these Bylaws or in the case of uncertificated shares, an outstanding certificate for the number of shares
involved shall be surrendered for cancellation before a new certificate is issued therefor.
The
issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board
of Directors may establish.
SECTION
3 – RECORD DATE
In
order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders, or to receive payment
of any dividend or other distribution or allotment of any rights or to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record
date shall not precede the date on which the resolution fixing the record date is adopted and which record date shall not be more
than sixty (60) nor less than ten (10) days before the date of any meeting of stockholders, nor more than sixty (60) days prior
to the time for such other action as hereinbefore described. If the Board of Directors so fixes a date, such date shall also be
the record date for determining the stockholders entitled to vote at such meeting unless the Board of Directors determines, at
the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination.
If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of and to
vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held, and, for determining
stockholders entitled to receive payment of any dividend or other distribution or allotment of rights or to exercise any rights
of change, conversion or exchange of stock or for any other purpose, the record date shall be at the close of business on the
day on which the Board of Directors adopts a resolution relating thereto.
A
determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment
of the meeting; provided, however, that the Board of Directors may fix a new record date for determination of stockholders entitled
to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such
adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with
the foregoing provisions of this Section 3 at the adjourned meeting.
SECTION
4 - FRACTIONAL SHARES
Notwithstanding
anything else in these Bylaws, the Corporation, if the Directors so resolve, will not be required to issue fractional shares in
connection with an amalgamation, consolidation, exchange or conversion. At the discretion of the Directors, fractional interests
in shares may be rounded to the nearest whole number, with fractions of 1/2 being rounded to the next highest whole number, or
may be purchased for cancellation by the Corporation for such consideration as the Directors determine. The Directors may determine
the manner in which fractional interests in shares are to be transferred and delivered to the Corporation in exchange for consideration
and a determination so made is binding upon all stockholders of the Corporation. In case stockholders having fractional interests
in shares fail to deliver them to the Corporation in accordance with a determination made by the Directors, the Corporation may
deposit with the Corporation’s Registrar and Transfer Agent a sum sufficient to pay the consideration payable by the Corporation
for the fractional interests in shares, such deposit to be set aside in trust for such stockholders. Such setting aside is deemed
to be payment to such stockholders for the fractional interests in shares not so delivered which will thereupon not be considered
as outstanding and such stockholders will not be considered to be stockholders of the Corporation with respect thereto and will
have no right except to receive payment of the money so set aside and deposited upon delivery of the certificates for the shares
held prior to the amalgamation, consolidation, exchange or conversion which result in fractional interests in shares.
ARTICLE
V: DIVIDENDS
A.
Dividends may be declared and paid out of any funds available therefor, as often, in such amounts, and at such time or times
as the Board of Directors may determine and shares may be issued pro rata and without consideration to the Corporation’s
stockholders or to the stockholders of one or more classes or series.
B.
Shares of one class or series may not be issued as a share dividend to stockholders of another class or series unless such
issuance is in accordance with the Certificate of Incorporation and:
(i) a majority of the current stockholders of the class or series to be issued approve the issue; or
(ii)
there are no outstanding shares of the class or series of shares that are authorized to be issued as a dividend.
ARTICLE
VI: FISCAL YEAR
Except
as otherwise determined by the Board of Directors from time to time, the fiscal year of the Corporation shall end on the last
day of December of each year.
ARTICLE
VII: CORPORATE SEAL
The
Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the
Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used
by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
ARTICLE
VIII: AMENDMENTS
In
furtherance and not in limitation of the powers conferred by law, the Board of Directors is expressly authorized to adopt, amend
and repeal these Bylaws subject to the power of the holders of capital stock of the Corporation to adopt, amend or repeal the
Bylaws; provided, however, that, with respect to the power of holders of capital stock to adopt, amend and repeal Bylaws of the
Corporation, notwithstanding any other provision of these Bylaws or any provision of law which might otherwise permit a lesser
vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the capital stock
of the Corporation required by law, these Bylaws or any Preferred Stock, the affirmative vote of the holders of at least eighty
percent (80%) of the voting power of all of the then-outstanding shares entitled to vote generally in the election of directors,
voting together as a single class, shall be required to adopt, amend or repeal any provision of these Bylaws.
ARTICLE
IX: DISCLOSURE OF INTEREST OF DIRECTORS
SECTION
1 – TRANSACTIONS WITH INTERESTED PARTIES
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, or solely because the director or
officer is present at or participates in the meeting of the Board or committee thereof which authorizes the contract or transaction
or solely because the votes of such director or officer are counted for such purpose, if:
(i) The
material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are known to the
Board of Directors or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or
(ii) The
material facts as to his or her relationship or interest and as to the contract or transaction are disclosed or are 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
(iii) 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.
SECTION
2 – QUORUM
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.
ARTICLE
X: INDEMNITY OF DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS
Section
1 – Right to Indemnification
Each
person who was or is made a party or is threatened to be made a party to or is otherwise involved (including, without limitation,
as a witness) in any action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director,
officer, or trustee of another corporation, or of a partnership, joint venture, trust or other enterprise, 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 or trustee or in any other capacity while serving as a director,
officer or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by law, as the same
exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment),
against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith; provided, however, that,
except as provided in Section 3 of this Article with respect to proceedings to enforce rights to indemnification or as otherwise
required by law, the Corporation shall not be required to indemnify or advance expenses to any such Indemnitee in connection with
a proceeding (or part thereof) initiated by such Indemnitee unless such proceeding (or part thereof) was authorized by the Board
of Directors of the Corporation.
Section
2 – Right to Advancement of Expenses
In
addition to the right to indemnification conferred in Section 1 of this Article, an Indemnitee shall also have the right to be
paid by the Corporation the expenses (including attorney’s fees) incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred
by an Indemnitee in his capacity as a director or officer (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 delivery to the Corporation
of an undertaking, by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined by
final judicial decision from which there is no further right to appeal that such Indemnitee is not entitled to be indemnified
for such expenses under this Section 2 or otherwise.
Section
3 – Right of Indemnitees to Bring Suit
If
a claim under Section 1 or 2 of this Article is not paid in full by the Corporation within sixty (60) days after a written claim
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 twenty (20) days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. To the fullest extent permitted by law, 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 expenses of prosecuting or defending such suit. In (i) any suit brought by the Indemnitee
to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an advancement
of expenses) it shall be a defense that, and (ii) 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 adjudication
that, the Indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law.
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 Delaware General Corporation Law, nor an actual determination by the Corporation (including 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, 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 brought 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 or otherwise shall be on the Corporation.
Section
4 – Non-Exclusivity of Rights
The
rights to indemnification and to the advancement of expenses conferred in this Article shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute, the Corporation’s Certificate of Incorporation as amended
from time to time, these Bylaws, any agreement, any vote of stockholders or disinterested directors or otherwise.
Section
5 – Insurance
The
Corporation may maintain insurance, at its expense, to protect itself and 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 Delaware
General Corporation Law.
Section
6 – Indemnity Agreements
The
Corporation may enter into indemnity agreements with the persons who are members of its Board of Directors from time to time,
and with such officers, employees and agents of the Corporation and with such officers, directors, employees and agents of subsidiaries
as the Board of Directors may designate, such indemnity agreements to provide in substance that the Corporation will indemnify
such persons as contemplated by this Article, and to include any other substantive or procedural provisions regarding indemnification
as are not inconsistent with Delaware law. The provisions of such indemnity agreements shall prevail to the extent that they limit
or condition or differ from the provisions of this Article.
Section
7 – Indemnification of Employees and Agents of the Corporation
The
Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to
the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article
with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
Section
8 – Nature of Rights
The
rights conferred upon Indemnitees in this Article shall be contract rights and such rights shall continue as to an Indemnitee
who has ceased to be a director, officer, employee, agent or trustee and shall inure to the benefit of the Indemnitee’s
heirs, executors and administrators. Any amendment, alteration or repeal of this Article that adversely affects any right of an
Indemnitee or its successors shall be prospective only and shall not limit, eliminate, or impair any such right with respect to
any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment,
alteration or repeal.
Section
9 – Severability
If
any word, clause, provision or provisions of this Article shall be held to be invalid, illegal or unenforceable for any reason
whatsoever: (i) the validity, legality and enforceability of the remaining provisions of this Article (including, without limitation,
each portion of any section of this Article containing any such provision held to be invalid, illegal or unenforceable, that is
not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (ii) to the
fullest extent possible, the provisions of this Article (including, without limitation, each such portion of any section of this
Article 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
XI: MISCELLANEOUS
SECTION
1 – NOTICES
If
mailed, notice to stockholders shall be deemed given when deposited in the mail, postage prepaid, directed to the stockholder
at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notice
otherwise may be given effectively to stockholders, any notice to stockholders may be given by electronic transmission in the
manner provided in Section 232 of the Delaware General Corporation Law.
A
written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by such person, whether
before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be
given to such person. Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance at any
meeting shall constitute waiver of notice except attendance for the express purpose of objecting at the beginning of the meeting
to the transaction of business because the meeting is not lawfully called or convened.
SECTION
2 – FORUM SELECTION
Unless
the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive forum for (i) any derivative
action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed
by any director or officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii)
any action asserting a claim against the Corporation or any director or officer or other employee of the Corporation arising pursuant
to any provision of the Delaware General Corporation Law or the Corporation’s Certificate of Incorporation or Bylaws, as
either may be amended from time to time, or (iv) any action asserting a claim against the Corporation or any director or officer
or other employee of the Corporation governed by the internal affairs doctrine, shall be a state court located within the State
of Delaware (or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District
of Delaware). Any person or entity holding, 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 Bylaw.
SECTION
3 – INTERPRETATION
The
Board of Directors shall have the power to interpret all of the terms and provisions of these Bylaws, which interpretation shall
be conclusive.
SECTION
4 – FACSIMILE SIGNATURES
In
addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures
of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or a committee
thereof.
SECTION
5 – RELIANCE UPON BOOKS, REPORTS AND RECORDS
Each
director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the
performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the
Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its officers or
employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director or
committee member reasonably believes are within such other person’s professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation.
SECTION
6 – TIME PERIODS
In
applying any provision of these Bylaws which requires that an act be done or not be done a specified number of days prior to an
event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the
day of the doing of the act shall be excluded, and the day of the event shall be included.
SECTION
7 – PRONOUNS
Whenever
the context may require, any pronouns used in these Bylaws shall include the corresponding masculine, feminine or neuter forms.
Vantage
Health Announces Corporate Name Change to Vantage mHealthcare, Inc.
Company
Amends State of Incorporation to Delaware
New
York, NY – January 9, 2015 – Vantage mHealthcare, Inc. (OTCQB: VNTH) (“Vantage Health” or the “Company”)
today announced that the corporate name has officially changed to Vantage mHealthcare, Inc. to better align the strategic direction
of the Company within the growing and innovative mobile healthcare technology sector.
In
addition to this name change, the Company has amended its Certificate of Incorporation such that it is now a Delaware corporation
and it increased its authorized shares outstanding from 250,000,000 to 500,000,000 shares and reclassified such capital stock
into 450,000,000 shares of common stock, par value $0.001, and 50,000,000 shares of preferred stock, par value $0.001. The Company
has no immediate plans to use the additional shares.
The
Company has also adopted Amended and Restated Bylaws which, along with the amended Certificate of Incorporation, contain customary
public company provisions.
Vantage
mHealthcare has officially moved its corporate headquarters to New York, New York, while continuing operational headquarters in
Mountain View, CA.
About
Vantage mHealthcare, Inc.
Vantage
mHealthcare, Inc. - a mobile healthcare technology company - is developing personalized and point-of-care screening using Apps
based upon chemical sensing residing within a Bluetooth device that works with any smartphone. With its foundations in advanced
nanotechnology, the Company’s first product, the Vantage Health Sensor, which is in development, is the convergence of nano-electronics,
bio-informatics, and wireless technology to create the next generation mobile health application. The first mobile App is expected
to be for lung cancer screening with additional mobile healthcare Apps in the planning stages. The company has offices in New
York City and Mountain View, California. For more information, please visit http://www.vantagehealthinc.com.
This
press release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform
Act of 1995 that involve risks and uncertainties that could cause actual results to be materially different from historical results
or from any future results expressed or implied by such forward-looking statements. Such forward-looking statements include, among
other things, statements with respect to our objectives and strategies to achieve those objectives, as well as statements with
respect to our beliefs, plans, expectations, anticipations, estimates or intentions. Such forward-looking statements may also
include statements, among other things, concerning the efficacy, safety and intended utilization of Vantage Health’s product
candidates, the conduct and results of future clinical trials, plans regarding regulatory filings, future research and clinical
trials and plans regarding partnering activities. Factors that may cause actual results to differ materially include, among others,
the risk that product candidates that appeared promising in early research and clinical trials do not demonstrate safety and/or
efficacy in larger-scale or later clinical trials, trials may have difficulty enrolling, Vantage Health may not obtain approval
to market its product candidates, or outside financing may not be available to meet capital requirements. These forward-looking
statements are based on our current expectations. We caution that all forward-looking information is inherently uncertain and
actual results may differ materially from the assumptions, estimates or expectations reflected or contained in the forward-looking
information, and that actual future performance will be affected by a number of factors, including economic conditions, technological
change, regulatory change and competitive factors, many of which are beyond our control. Therefore, future events and results
may vary significantly from what we currently foresee.
For
a further list and description of the risks and uncertainties the Company faces, please refer to the Company’s most recent
Annual Report on Form 10-K and other periodic and other filings Vantage Health files with the Securities and Exchange Commission
and are available at www.sec.gov. Such forward-looking statements are current only as of the date they are made, and Vantage assumes
no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise.
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