P.O. Box 387
P.O. Box 387
You are cordially invited to attend
the 2019 Annual Meeting of Stockholders of GlyEco, Inc. (the “Annual Meeting”) on March 13, 2019 at 9:00 am (Eastern
Time). The Annual Meeting will be held at the offices of Robinson Brog Leinwand Greene Genovese and Gluck P.C., located at 875
Third Avenue, 9
th
Floor, New York, NY 10022.
If you plan to attend the
Annual Meeting in person, you must either call us at (304) 400-4006 or email us at info@glyeco.com on or before February ___,
2019 have your name placed on the attendance list. Only those
stockholders whose names appear on the attendance list will be allowed to enter and attend the Annual Meeting. Please note
that you will need to present picture identification to gain entrance to the Annual Meeting.
Enclosed please find our proxy statement
and related materials. Whether or not you plan to attend the Annual Meeting, your vote is very important, and we encourage you
to vote promptly. You may vote your shares of common stock, par value $0.0001 per share, of GlyEco, Inc. (the “Common Stock”)
over the internet or by mail by following the instructions on the proxy card. If you do attend the Annual Meeting, you will, of
course, have the right to revoke the proxy and vote your shares of Common Stock in person. If you hold your shares of Common Stock
through an account with a broker, nominee, fiduciary, or other custodian, please follow the instructions you receive from them
to vote your shares of Common Stock.
On behalf of the Board of Directors
of GlyEco, Inc., I would like to express our appreciation for your continued support of GlyEco, Inc.
P.O. Box 387
FUTURE STOCKHOLDER PROPOSALS
The Board has not yet determined the date
on which the next Annual Meeting of Stockholders will be held. Stockholders may submit proposals on matters appropriate for stockholder
action at annual meetings in accordance with the rules and regulations adopted by the SEC. Such proposals must be submitted
in writing to GlyEco, Inc., P.O. Box 387, Institute, WV 25112, Attention: Corporate Secretary. Any proposal which an eligible stockholder
desires to have included in our proxy statement and presented at the next Annual Meeting of Stockholders will be included in our
proxy statement and related proxy card if it is received by us a reasonable time before we begin to print and send our proxy materials
and if it complies with SEC rules regarding inclusion of proposals in proxy statements. In order to avoid controversy as to
the date on which we receive a proposal, it is suggested that any stockholder who wishes to submit a proposal submit such proposal
by certified mail, return receipt requested.
Other deadlines apply to the submission
of stockholder proposals for the next Annual Meeting of Stockholders that are not required to be included in our proxy statement
under SEC rules. With respect to these stockholder proposals for the next Annual Meeting of Stockholders, a stockholder’s
notice must be received by us a reasonable time before we begin to print and send our proxy materials. The form of proxy distributed
by the Board for such meeting will confer discretionary authority to vote on any such proposal not received by such date. If any
such proposal is received by such date, the proxy statement for the meeting will provide advice on the nature of the matter and
how we intend to exercise our discretion to vote on each such matter if it is presented at that meeting.
EXPENSES AND SOLICITATION
We will bear the costs of printing and
mailing proxies. In addition to soliciting stockholders by mail or through our regular employees, we may request banks, brokers
and other custodians, nominees and fiduciaries to solicit their customers who have shares of our Common Stock registered in the
name of a nominee and, if so, will reimburse such banks, brokers and other custodians, nominees and fiduciaries for their reasonable
out-of-pocket costs. Solicitation by our officers and employees may also be made of some stockholders following the original solicitation.
OTHER BUSINESS
The Board knows of no other items that
are likely to be brought before the Annual Meeting except those that are set forth in the foregoing Notice of Annual Meeting of
Stockholders. If any other matters properly come before the Annual Meeting, the persons designated on the enclosed proxy will vote
in accordance with their judgment on such matters.
ADDITIONAL INFORMATION
We are subject to the information and reporting
requirements of the Exchange Act, and in accordance therewith, we file periodic reports, documents and other information with the
SEC relating to our business, financial statements and other matters. Such reports and other information may be inspected and are
available for copying at the offices of the SEC, 100 F Street, N.E., Washington, D.C. 20549 or may be accessed at www.sec.gov.
Information regarding the operation of the public reference rooms may be obtained by calling the SEC at 1-800-SEC-0330. You are
encouraged to review our Annual Report on Form 10-K, together with any subsequent information we filed or will file with the SEC
and other publicly available information. A copy of any public filing is also available, at no charge, by contacting our legal
counsel, Robinson Brog Leinwand Greene Genovese & Gluck P.C., Attn: David E. Danovitch, Esq. at (212) 603-6300.
[PROXY CARD]
It is important
that the proxies be returned promptly and that your shares of Common Stock be represented. Stockholders are urged to mark, date,
execute, and promptly return the accompanying proxy card.
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February [__], 2019
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By Order of the Board of Directors,
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/s/ Dwight
Mamanteo
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Dwight Mamanteo, Chairman of the Board
of Directors
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APPENDIX A
PLAN OF CONVERSION
of
GLYECO, INC.,
a Nevada corporation
into
GLYECO, INC.,
a Delaware corporation
This Plan of Conversion
,
dated as of [ ],
2019 (including all of the Exhibits attached hereto, this “
Plan
”
)
, is hereby adopted by GlyEco,
Inc., a Nevada corporation, in order to set forth the terms, conditions and procedures governing the conversion of GlyEco, Inc.
from a Nevada corporation to a Delaware corporation pursuant to Section 265 of the General Corporation Law of the State of
Delaware, as amended (the “
DGCL
”), and Section 92A.120 of the Nevada Revised Statutes, as amended
(the “
NRS
”).
RECITALS
Whereas
,
GlyEco, Inc. is a corporation organized and existing under the laws of the State of Nevada (the “
Converting Entity
”);
Whereas
,
the Board of Directors of the Converting Entity has determined that it would be advisable and in the best interests of the Converting
Entity and its stockholders for the Converting Entity to convert from a Nevada corporation to a Delaware corporation pursuant to
Section 265 of the DGCL and Section 92A.120 of the NRS;
Whereas
,
the form, terms and provisions of this Plan have been authorized, approved and adopted by the Board of Directors of the Converting
Entity;
Whereas
,
the Board of Directors of the Converting Entity has submitted this Plan to the stockholders of the Converting Entity for approval;
and
Whereas
,
this Plan has been authorized, approved and adopted by the holders of a majority of the voting power of the stockholders of the
Converting Entity.
Now,
Therefore
, the Converting Entity hereby adopts this Plan as follows:
PLAN OF CONVERSION
1.
Conversion;
Effect of Conversion
.
(a) Upon
the Effective Time (as defined in Section 3 below), the Converting Entity shall be converted from a Nevada corporation to
a Delaware corporation pursuant to Section 265 of the DGCL and Section 92A.120 of the NRS (the “
Conversion
”)
and the Converting Entity, as converted to a Delaware corporation (the “
Converted Entity
”), shall thereafter
be subject to all of the provisions of the DGCL, except that notwithstanding Section 106 of the DGCL, the existence of the
Converted Entity shall be deemed to have commenced on the date the Converting Entity commenced its existence in the State of Nevada.
(b) Upon
the Effective Time, by virtue of the Conversion and without any further action on the part of the Converting Entity or its stockholders,
the Converted Entity shall, for all purposes of the laws of the State of Delaware, be deemed to be the same entity as the Converting
Entity existing immediately prior to the Effective Time. Upon the Effective Time, by virtue of the Conversion and without any further
action on the part of the Converting Entity or its stockholders, for all purposes of the laws of the State of Delaware, all of
the rights, privileges and powers of the Converting Entity existing immediately prior to the Effective Time, and all property,
real, personal and mixed, and all debts due to the Converting Entity existing immediately prior to the Effective Time, as well
as all other things and causes of action belonging to the Converting Entity existing immediately prior to the Effective Time, shall
remain vested in the Converted Entity and shall be the property of the Converted Entity and the title to any real property vested
by deed or otherwise in the Converting Entity existing immediately prior to the Effective Time shall not revert or be in any way
impaired by reason of the Conversion; but all rights of creditors and all liens upon any property of the Converting Entity existing
immediately prior to the Effective Time shall be preserved unimpaired, and all debts, liabilities and duties of the Converting
Entity existing immediately prior to the Effective Time shall remain attached to the Converted Entity upon the Effective Time,
and may be enforced against the Converted Entity to the same extent as if said debts, liabilities and duties had originally been
incurred or contracted by the Converted Entity in its capacity as a corporation of the State of Delaware. The rights, privileges,
powers and interests in property of the Converting Entity existing immediately prior to the Effective Time, as well as the debts,
liabilities and duties of the Converting Entity existing immediately prior to the Effective Time, shall not be deemed, as a consequence
of the Conversion, to have been transferred to the Converted Entity upon the Effective Time for any purpose of the laws of the
State of Delaware.
(c) The
Conversion shall not be deemed to affect any obligations or liabilities of the Converting Entity incurred prior to the Conversion
or the personal liability of any person incurred prior to the Conversion.
(d) Upon
the Effective Time, the name of the Converted Entity shall remain unchanged and continue to be “GlyEco, Inc.”
(e) The
Converting Entity intends for the Conversion to constitute a tax-free reorganization qualifying under Section 368(a) of the
Internal Revenue Code of 1986, as amended.
2.
Filings
. As
promptly as practicable following the adoption of this Plan by the Board of Directors and the stockholders of the Converting Entity,
the Converting Entity shall cause the Conversion to be effective by:
(a) executing
and filing (or causing the execution and filing of) Articles of Conversion pursuant to Section 92A.205 of the NRS, substantially
in the form of
EXHIBIT A
hereto (the “
Nevada Articles of Conversion
”), with the
Secretary of State of the State of Nevada;
(b) executing
and filing (or causing the execution and filing of) a Certificate of Conversion pursuant to Sections 103 and 265 of the DGCL, substantially
in the form of
EXHIBIT B
hereto (the “
Delaware Certificate of Conversion
”), with
the Secretary of State of the State of Delaware; and
(c) executing
and filing (or causing the execution and filing of) a Certificate of Incorporation of the Converted Entity, substantially in the
form of
EXHIBIT C
hereto (the “
Delaware Certificate of Incorporation
”), with the
Secretary of State of the State of Delaware.
3.
Effective
Time
. The Conversion shall become effective upon the last to occur of the filing of the Nevada Articles of Conversion,
the Delaware Certificate of Conversion and the Delaware Certificate of Incorporation (the time of the effectiveness of the Conversion,
the “
Effective Time
”).
4.
Effect
of Conversion on Common Stock
. Upon the Effective Time, by virtue of the Conversion and without any further action
on the part of the Converting Entity or its stockholders, each share of Common Stock, $0.001 par value per share, of the Converting
Entity (“
Converting Entity Common Stock
”) that is issued and outstanding immediately prior to the Effective
Time shall convert into one validly issued, fully paid and nonassessable share of Common Stock, $0.0001 par value per share, of
the Converted Entity (“
Converted Entity Common Stock
”).
5.
Effect
of Conversion on Outstanding Stock Options
. Upon the Effective Time, by virtue of the Conversion and without any
further action on the part of the Converting Entity or its stockholders, each option to acquire shares of Converting Entity Common
Stock outstanding immediately prior to the Effective Time shall convert into an equivalent option to acquire, upon the same terms
and conditions (including the vesting schedule and exercise price per share applicable to each such option) as were in effect immediately
prior to the Effective Time, the same number of shares of Converted Entity Common Stock.
6.
Effect
of Conversion on Shares of Restricted Stock
. Upon the Effective Time, by virtue of the Conversion and without any
further action on the part of the Converting Entity or its stockholders, each restricted share of Converting Entity Common Stock
outstanding immediately prior to the Effective Time shall convert into an equivalent restricted share of Converted Entity Common
Stock with the same terms and conditions (including the vesting schedule applicable to each such share) as were in effect immediately
prior to the Effective Time.
7.
Effect
of Conversion on Outstanding Warrants or Other Rights
. Upon the Effective Time, by virtue of the Conversion and
without any further action on the part of the Converting Entity or its stockholders, each warrant or other right to acquire shares
of Converting Entity Common Stock or Converting Entity Preferred Stock outstanding immediately prior to the Effective Time shall
convert into an equivalent warrant or other right to acquire, upon the same terms and conditions (including the exercise price
per share applicable to each such warrant or other right) as were in effect immediately prior to the Effective Time, the same number
of shares of Converted Entity Common Stock or Converted Entity Preferred Stock, respectively.
8.
Effect
of Conversion on Stock Certificates
. All of the outstanding certificates representing shares of Converting Entity
Common Stock immediately prior to the Effective Time shall be deemed for all purposes to continue to evidence ownership of and
to represent the same number of shares of Converted Entity Common Stock.
9.
Effect
of Conversion on Employee Benefit, Stock Option or Other Similar Plans
. Upon the Effective Time, by virtue of the Conversion
and without any further action on the part of the Converting Entity or its stockholders, each employee benefit plan, stock option
plan or other similar plan to which the Converting Entity is a party shall continue to be a plan of the Converted Entity. To the
extent that any such plan provides for the issuance of Converting Entity Common Stock, upon the Effective Time, such plan shall
be deemed to provide for the issuance of Converted Entity Common Stock.
10.
Further
Assurances
. If, at any time after the Effective Time, the Converted Entity shall determine or be advised that any
deeds, bills of sale, assignments, agreements, documents or assurances or any other acts or things are necessary, desirable or
proper, consistent with the terms of this Plan, (a) to vest, perfect or confirm, of record or otherwise, in the Converted
Entity its right, title or interest in, to or under any of the rights, privileges, immunities, powers, purposes, franchises, properties
or assets of the Converting Entity existing immediately prior to the Effective Time, or (b) to otherwise carry out the purposes
of this Plan, the Converted Entity and its officers and directors (or their designees), are hereby authorized to solicit in the
name of the Converted Entity any third-party consents or other documents required to be delivered by any third-party, to execute
and deliver, in the name and on behalf of the Converted Entity, all such deeds, bills of sale, assignments, agreements, documents
and assurances and do, in the name and on behalf of the Converted Entity, all such other acts and things necessary, desirable or
proper to vest, perfect or confirm its right, title or interest in, to or under any of the rights, privileges, immunities, powers,
purposes, franchises, properties or assets of the Converting Entity existing immediately prior to the Effective Time and otherwise
to carry out the purposes of this Plan.
11.
Effect
of Conversion on Directors and Officers
. Upon the Effective Time, by virtue of the Conversion and without any further
action on the part of the Converting Entity or its stockholders, the members of the Board of Directors and the officers of the
Converting Entity holding their respective offices in the Converting Entity existing immediately prior to the Effective Time shall
continue in their respective offices as members of the Board of Directors and officers, respectively, of the Converted Entity.
12.
Delaware
Bylaws
. Upon the Effective Time, the bylaws of the Converted Entity shall be the Bylaws of GlyEco, Inc., substantially
in the form of
EXHIBIT D
hereto.
13.
Delaware
Indemnification Agreements
. As promptly as practicable following the Effective Time, the Converted Entity shall
enter into an Indemnification Agreement substantially in the form of
EXHIBIT E
hereto with each member of
the Board of Directors of the Converted Entity and each executive officer of the Converted Entity.
14.
Copy
of Plan of Conversion
. After the Conversion, a copy of this Plan will be kept on file at the offices of the Converted
Entity, and any stockholder of the Converted Entity (or former stockholder of the Converting Entity) may request a copy of this
Plan at no charge at any time.
15.
Termination
. At
any time prior to the Effective Time, this Plan may be terminated and the transactions contemplated hereby may be abandoned by
action of the Board of Directors of the Converting Entity if, in the opinion of the Board of Directors of the Converting Entity,
such action would be in the best interests of the Converting Entity and its stockholders. In the event of termination of this Plan,
this Plan shall become void and of no further force or effect.
16.
Third
Party Beneficiaries
. This Plan shall not confer any rights or remedies upon any person other than as expressly provided
herein.
17.
Severability
. Whenever
possible, each provision of this Plan will be interpreted in such manner as to be effective and valid under applicable law, but
if any provision of this Plan is held to be prohibited by or invalid under applicable law, such provision will be ineffective only
to the extent of such prohibition or invalidity, without invalidating the remainder of this Plan.
I
n
Witness
Whereof
,
the undersigned hereby causes this Plan to be duly executed as of the date hereof.
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GLYECO, INC.,
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a Nevada corporation
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By:
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Name: Richard Geib
Title: Chief Executive Officer
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APPENDIX B
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BARBARA K. CEGAVSKE
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775) 684-5708
Website: www.nvsos.gov
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Articles of Conversion
(PURSUANT TO NRS 92A.205)
Page 1
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USE BLACK INK ONLY - DO NOT HIGHLIGHT
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ABOVE SPACE IS FOR OFFICE USE ONLY
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Articles
of Conversion
(Pursuant to
NRS 92A.205)
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1.
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Name and jurisdiction of organization of constituent entity and resulting entity:
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GlyEco, Inc.
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Name of constituent entity
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Nevada
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Corporation
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Jurisdiction
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Entity type *
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and,
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GlyEco, Inc.
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Name of resulting entity
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Delaware
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Corporation
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Jurisdiction
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Entity type *
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2.
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A plan of conversion has been adopted by the constituent entity in compliance with the law of the jurisdiction governing the constituent entity.
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3.
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Location of plan of conversion: (check one)
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¨
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The entire plan of conversion is attached to these articles.
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þ
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The complete executed plan of conversion is on file at the registered office or principal place of business of the resulting entity.
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The complete executed plan of conversion for the resulting domestic limited
partnership is
on file at the records office required by NRS 88.330.
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* corporation, limited
partnership, limited-liability limited partnership, limited-liability company or business trust.
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This form must be accompanied by appropriate fees.
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Nevada Secretary of State 92A Conversion Page 1
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Revised: 1-5-15
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BARBARA K. CEGAVSKE
Secretary of State
204 North Carson Street, Suite 1
Carson City, Nevada 89701-4520
(775) 684-5708
Website: www.nvsos.gov
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Articles of Conversion
(PURSUANT TO NRS 92A.205)
Page 2
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USE BLACK INK ONLY - DO NOT HIGHLIGHT
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ABOVE SPACE IS FOR OFFICE USE ONLY
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4.
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Forwarding address where copies of process may be sent by the Secretary of State of Nevada (if a foreign entity is the resulting entity in the conversion):
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5.
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Effective date and time of filing: (optional) (must not be later than 90 days after the certificate is filed)
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6.
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Signatures - must be signed by:
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1
. If constituent
entity is a Nevada entity: an officer of each Nevada corporation; all general partners of each Nevada limited partnership or limited-liability
limited partnership; a manager of each Nevada limited-liability company with managers or one member if there are no managers; a
trustee of each Nevada business trust; a managing partner of a Nevada limited-liability partnership (a.k.a. general partnership
governed by NRS chapter 87).
2. If constituent entity
is a foreign entity: must be signed by the constituent entity in the manner provided by the law governing it.
GlyEco, Inc.
Name of
constituent
entity
* Pursuant to
NRS 92A.205(4) if the conversion takes effect on a later date specified in the articles of conversion pursuant to NRS 92A.240,
the constituent document filed with the Secretary of State pursuant to paragraph (b) subsection 1 must state the name and
the jurisdiction of the constituent entity and that the existence of the resulting entity does not begin until the later date.
This statement must be included
within the resulting entity’s articles.
FILING FEE: $350.00
IMPORTANT:
Failure to include
any of the above information and submit with the proper fees may cause this filing to be rejected.
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Nevada Secretary of State 92A Conversion Page 2
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This form must be accompanied by appropriate fees.
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Revised: 1-5-15
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APPENDIX C
STATE OF DELAWARE
CERTIFICATE
OF CONVERSION
FROM A NON-DELAWARE
CORPORATION
TO A DELAWARE
CORPORATION
PURSUANT TO
SECTION 265 OF THE
DELAWARE GENERAL
CORPORATION LAW
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1.
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The jurisdiction where the Non-Delaware Corporation first formed is the State of Nevada.
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2.
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The jurisdiction immediately prior to filing this Certificate is the State of Nevada.
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3.
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The date the Non-Delaware Corporation first formed is October 21, 2011.
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4.
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The name of the Non-Delaware Corporation immediately prior to filing this Certificate is GlyEco, Inc.
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5.
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The
name of the Corporation as set forth in the Certificate of Incorporation is GlyEco, Inc.
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I
n
Witness
Whereof
,
the undersigned being duly authorized to sign on behalf of the converting Non-Delaware Corporation has executed this Certificate
on , 2019.
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GLYECO, INC.,
a Nevada corporation
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By:
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Name:
Title:
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Richard Geib
Chief Executive Officer
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APPENDIX D
CERTIFICATE
OF INCORPORATION
OF
GLYECO, INC.
ARTICLE I
The
name of the corporation is GlyEco, Inc. (the “
Corporation
”).
ARTICLE II
The
address of the registered offices of the Corporation in the State of Delaware is [__________________]. The name of its registered
agent in charge thereof is [_________________].
ARTICLE III
The
purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as the same may be amended and supplemented from time to time (the “
DGCL
”).
ARTICLE IV
A. The
total number of shares which the Corporation shall have authority to issue is 21,000,000 shares of capital stock, of which 20,000,000
shares shall be designated Common Stock, $0.0001 par value per share (“
Common Stock
”), and 1,000,000
shall be designated Preferred Stock, $0.0001 par value per share (“
Preferred Stock
”).
1.
Common
Stock
. All preferences, voting powers, relative, participating, optional or other special rights and privileges, and qualifications,
limitations, or restrictions of the Common Stock are expressly made subject and subordinate to those that may be fixed with respect
to any shares of the Preferred Stock. Except as otherwise required by law or this Certificate of Incorporation, each share of Common
Stock shall entitle the holder thereof to one (1) vote, in person or by proxy, on each matter submitted to a vote of stockholders
of the Corporation. Subject to the preferential rights of the Preferred Stock, the holders of shares of Common Stock shall be entitled
to receive, when and if declared by the Board of Directors, out of the assets of the Corporation which are by law available therefor,
dividends payable either in cash, in property or in shares of capital stock. In the event of any dissolution, liquidation or winding
up of the affairs of the Corporation, after distribution in full of the preferential amounts, if any, to be distributed to the
holders of shares of the Preferred Stock, holders of Common Stock shall be entitled, unless otherwise provided by law or this Certificate
of Incorporation, to receive all of the remaining assets of the Corporation of whatever kind available for distribution to stockholders
ratably in proportion to the number of shares of Common Stock held by them respectively.
2.
Preferred
Stock
. The Preferred Stock may be issued from time to time in one or more series, as determined by the Board of Directors of
the Corporation (the “
Board of Directors
”). The Board of Directors is expressly authorized to provide
for the issue, in one or more series, of all or any of the remaining shares of Preferred Stock and, in the resolution or resolutions
providing for such issue, to establish for each such series the number of its shares, the voting powers, full or limited, of the
shares of such series, or that such shares shall have no voting powers, and the designations, preferences and relative, participating,
optional or other special rights of the shares of such series, and the qualifications, limitations or restrictions thereof. The
Board of Directors is further expressly authorized to increase or decrease (but not below the number of shares of any such series
then outstanding) the number of shares of any series, the number of which was fixed by it, subsequent to the issuance of shares
of such series then outstanding, subject to the powers, preferences and rights, and the qualifications, limitations and restrictions
thereof stated in the Certificate of Incorporation or the resolution of the Board of Directors originally fixing the number of
shares of such series. If the number of shares of any series is so decreased, then the shares constituting such decrease shall
resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.
ARTICLE V
A. The
business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The number of directors
which shall constitute the whole Board of Directors shall be fixed by, or in the manner provided in, the Bylaws of the Corporation.
The members of the Board of Directors shall be elected at each annual meeting of stockholders to hold office until the next annual
meeting. Directors need not be stockholders of the Corporation. Each director, including a director elected or appointed to fill
a vacancy, shall hold office until the expiration of the term for which elected or appointed and until a successor has been elected
and qualified, or until his or her death, resignation or removal; except that if any such election shall not be so held, such election
shall take place at a stockholders’ meeting called in accordance with the DGCL.
B. Notwithstanding
the foregoing provisions of this Article V, each director shall serve until his or her successor is duly elected and qualified
or until his or her death, resignation, or removal.
C. One
or more members of the Board of Directors (including the entire Board of Directors) may be removed at any time with or without
cause by the holders of a majority of the shares then entitled to vote generally in the election of directors. Notwithstanding
the foregoing, and except as otherwise required by law, whenever the holders of any one or more series of Preferred Stock shall
have the right, voting separately as a class, to elect one or more directors of this corporation, the provisions of Clause C of
this Article V shall not apply with respect to the director or directors elected by such holders of Preferred Stock.
D. Subject
to the rights of the holders of any series of Preferred Stock then outstanding, vacancies occurring on the Board of Directors for
any reason and newly created directorships resulting from an increase in the authorized number of directors may be filled only
by the vote of a majority of the remaining members of the Board of Directors, although less than a quorum, or by a sole remaining
director. A person so elected by the Board of Directors to fill a vacancy or newly created directorship shall hold office for the
remainder of the full term of the director for which the vacancy was created or occurred and until his or her successor shall have
been duly elected and qualified. No decrease in the number of directors constituting the Board 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 required
by law, or by this Certificate of Incorporation or the Bylaws of the Corporation, may exercise the powers of the full Board of
Directors until the vacancy is filled.
ARTICLE VI
A. In
furtherance of and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors is expressly
empowered to adopt, amend or repeal the Bylaws of the Corporation. Any adoption, amendment or repeal of the Bylaws of the Corporation
by the Board of Directors shall require the approval of a majority of the directors then in office. The stockholders shall also
have power to adopt, amend or repeal the Bylaws of the Corporation;
provided
, however, that, in addition to any vote
of the holders of any class or series of stock of the Corporation required by law or by this Certificate of Incorporation, such
action by stockholders shall require the affirmative vote of the holders of at least 66 2/3% 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.
B. The
directors of the Corporation need not be elected by written ballot unless the Bylaws of the Corporation so provide.
ARTICLE VII
A. No
action shall be taken by the stockholders of the Corporation except at an annual or special meeting of the stockholders called
in accordance with the Bylaws of the Corporation, and no action shall be taken by the stockholders by written consent.
B. 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 of the Corporation.
ARTICLE VIII
A. To
the fullest extent permitted by the DGCL, a director of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director. If the DGCL 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 DGCL, as so amended.
B. Neither
any amendment nor repeal of this Article VIII, nor the adoption of any provision of this Certificate of Incorporation inconsistent
with this Article VIII, shall eliminate or reduce the effect of this Article VIII in respect of any matter occurring, or any cause
of action, suit or proceeding accruing or arising or that, but for this Article VIII, would accrue or arise, prior to such amendment,
repeal or adoption of an inconsistent provision.
ARTICLE IX
A. Subject
to any provisions in the Bylaws of the Corporation related to indemnification of directors or officers of the Corporation, the
Corporation is authorized to indemnify, to the fullest extent permitted by applicable law, any director, officer, employee or agent
of the Corporation who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative (a “
Proceeding
”) by reason of
the fact that he or she is or was a director, officer, employee or agent of the Corporation or is or was serving at the request
of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such person in connection with any such Proceeding.
B. A
right to indemnification or to advancement of expenses arising under a provision of this Certificate of Incorporation or the Bylaws
of the Corporation shall not be eliminated or impaired by an amendment to this Certificate of Incorporation or the Bylaws of the
Corporation after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative
action, suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the
time of such act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
ARTICLE X
The
Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred upon the stockholders herein are granted subject
to this reservation. Notwithstanding any other provision of this Certificate of Incorporation, and in addition to any other vote
that may be required by law or the terms of any series of Preferred Stock, the affirmative vote of the holders of at least 66 2/3%
of the voting power of all then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election
of directors, voting together as a single class, shall be required to amend, alter or repeal Article V, Article VI, Article VII,
Article VIII, Article IX and Article X.
ARTICLE XI
The
name and mailing address of the incorporator of the Corporation are as follows:
David E. Danovitch,
Esq.
Robinson Brog
Leinwand Greene Genovese & Gluck P.C.
875 3
rd
Avenue,
9
th
Floor
New York, NY 10022
* * * *
I,
The Undersigned
,
for
the purpose of forming a corporation under the laws of the State of Delaware, do make, file and record this Certificate of Incorporation,
and do certify that the facts herein stated are true, and I have accordingly hereunto set my hand this
day of ,
2019.
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[David E. Danovitch], Incorporator
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APPENDIX E
BYLAWS
OF
GLYECO, INC.
a Delaware corporation
SECTION 1. OFFICES
The
principal office of GlyEco, Inc., a Delaware corporation (“
Corporation
”), shall be located at the principal
place of business or such other place as the Board of Directors (the “
Board
”) may designate. The Corporation
may have such other offices, either within or without the State of Delaware, as the Board may designate or as the business of the
Corporation may require from time to time.
SECTION 2. STOCKHOLDERS
2.1 Annual Meeting
(a)
The annual meeting of the stockholders shall be held on such date and at such time as shall be fixed by resolution of the Board,
at the principal office of the Corporation, or such other place as fixed by the Board, for the purpose of electing directors and
transacting such other business as may properly come before that meeting;
provided
,
however
, that the Board
may, in its sole discretion, determine that the meeting shall not be held at any place, but may instead be held solely by means
of remote communication as authorized by Section 211 of the General Corporation Law of the State of Delaware (the “
DGCL
”).
Nominations of persons for election to the Board and the proposal of business to be considered by the stockholders may be made
at an annual meeting of stockholders: (i) pursuant to the Corporation’s notice of meeting of stockholders (with respect
to business other than nominations); (ii) brought specifically by or at the direction of the Board; or (iii) by any stockholder
of the Corporation who was a stockholder of record at the time of giving the stockholder’s notice provided for in Section 2.1(b)
, who is entitled to vote at the meeting and who complied with the notice procedures set forth in this Section 2.1. For the
avoidance of doubt, clause (iii) above shall be the exclusive means for a stockholder to make nominations and submit other
business (other than matters properly included in the Corporation’s notice of meeting of stockholders and proxy statement
under Rule 14a-8 under the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “
1934
Act
”)) before an annual meeting of stockholders.
(b)
At an annual meeting of the stockholders, only such business shall be conducted as is a proper matter for stockholder action under
Delaware law and as shall have been properly brought before the meeting.
(i)
For nominations for the election to the Board to be properly brought before an annual meeting by a stockholder pursuant to clause
(iii) of Section 2.1(a) the stockholder must deliver written notice to the Secretary at the principal executive offices
of the Corporation on a timely basis as set forth in Section 2.1(b)(iii) and must update and supplement such written notice
on a timely basis as set forth in Section 2.1(c). Such stockholder’s notice shall set forth: (A) as to each nominee
such stockholder proposes to nominate at the meeting: (1) the name, age, business address and residence address of such nominee,
(2) the principal occupation or employment of such nominee, (3) the class and number of shares of each class of capital
stock of the Corporation which are, directly or indirectly, owned of record and beneficially by such nominee, (4) the date
or dates on which such shares were acquired and the investment intent of such acquisition, and (5) such other information
concerning such nominee as would be required to be disclosed in a proxy statement soliciting proxies for the election of such nominee
as a director in an election contest (even if an election contest is not involved), or that is otherwise required to be disclosed
pursuant to Section 14 of the 1934 Act and the rules and regulations promulgated thereunder (including such person’s
written consent to being named as a nominee and to serving as a director if elected); and (B) the information required by
Section 2.1(b)(iv). The Corporation may require any proposed nominee to furnish such other information as it may reasonably
require to determine the eligibility of such proposed nominee to serve as an independent director of the Corporation or that could
be material to a reasonable stockholder’s understanding of the independence, or lack thereof, of such proposed nominee.
(ii)
Other than proposals sought to be included in the Corporation’s proxy materials pursuant to Rule 14a-8 under the 1934 Act,
for business other than nominations for the election to the Board to be properly brought before an annual meeting by a stockholder
pursuant to clause (iii) of Section 2.1(a), the stockholder must deliver written notice to the Secretary at the principal
executive offices of the Corporation on a timely basis as set forth in Section 2.1(b)(iii), and must update and supplement
such written notice on a timely basis as set forth in Section 2.1(c). Such stockholder’s notice shall set forth: (A) as
to each matter such stockholder proposes to bring before the meeting, a brief description of the business desired to be brought
before the meeting, the reasons for conducting such business at the meeting, and any material interest (including any anticipated
benefit of such business to any Proponent (as defined below) other than solely as a result of its ownership of the Corporation’s
capital stock, that is material to any Proponent individually, or to the Proponents in the aggregate) in such business of any Proponent;
and (B) the information required by Section 2.1(b)(iv).
(iii)
To be timely, the written notice required by Section 2.1(b)(i) or 2.1(b)(ii) must be received by the Secretary of the Corporation
at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90
th
) day
nor earlier than the close of business on the one hundred twentieth (120
th
) day prior to the first anniversary
of the preceding year’s annual meeting;
provided, however
, that, subject to the last sentence of this Section 2.1(b)(iii),
in the event that the date of the annual meeting is advanced more than thirty (30) days prior to or delayed by more than thirty
(30) days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must
be so received by the Secretary of the Corporation not earlier than the close of business on the one hundred twentieth (120
th
) day
prior to such annual meeting and not later than the close of business on the later of the ninetieth (90
th
) day
prior to such annual meeting or the tenth (10
th
) day following the day on which public announcement of the date
of such meeting is first made. In no event shall an adjournment or a postponement of an annual meeting for which notice has been
given, or the public announcement thereof has been made, commence a new time period for the giving of a stockholder’s notice
as described above.
(iv)
The written notice required by Section 2.1(b)(i) or 2.1(b)(ii) shall also set forth, as of the date of the notice and as to
the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (each, a
“
Proponent
” and collectively, the “
Proponents
”): (A) the name and address
of each Proponent, as they appear on the Corporation’s books; (B) the class, series and number of shares of the Corporation
that are, directly or indirectly, owned beneficially and of record by each Proponent; (C) a description of any agreement,
arrangement or understanding (whether oral or in writing) with respect to such nomination or proposal between or among any Proponent
and any of its affiliates or associates, and any others (including their names) acting in concert, or otherwise under the agreement,
arrangement or understanding, with any of the foregoing; (D) a representation that the Proponents are holders of record or
beneficial owners, as the case may be, of shares of the Corporation entitled to vote at the meeting and intend to appear in person
or by proxy at the meeting to nominate the person or persons specified in the notice (with respect to a notice under Section 2.1(b)(i))
or to propose the business that is specified in the notice (with respect to a notice under Section 2.1(b)(ii)); (E) a representation
as to whether the Proponents intend to deliver a proxy statement and form of proxy to holders of a sufficient number of holders
of the Corporation’s voting shares to elect such nominee or nominees (with respect to a notice under Section 2.1(b)(i))
or to carry such proposal (with respect to a notice under Section 2.1(b)(ii)); (F) to the extent known by any Proponent,
the name and address of any other stockholder supporting the proposal on the date of such stockholder’s notice; and (G) a
description of all Derivative Transactions (as defined below) by each Proponent during the previous twelve (12) month period,
including the date of the transactions and the class, series and number of securities involved in, and the material economic terms
of, such Derivative Transactions.
For purposes of
Sections 2.1 and 2.2, a “
Derivative Transaction
” means any agreement, arrangement, interest or understanding
entered into by, or on behalf or for the benefit of, any Proponent or any of its affiliates or associates, whether record or beneficial:
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(w)
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the value of which is derived in whole or in part from the value of any class or series of shares or other securities of the Corporation,
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(x)
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which otherwise provides any direct or indirect opportunity to gain or share in any gain derived from a change in the value of securities of the Corporation,
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(y)
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the effect or intent of which is to mitigate loss, manage risk or benefit of security value or price changes, or
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(z)
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which provides the right to vote or increase or decrease the voting power of such Proponent, or any of its affiliates or associates, with respect to any securities of the Corporation, which agreement, arrangement, interest or understanding may include, without limitation, any option, warrant, debt position, note, bond, convertible security, swap, stock appreciation right, short position, profit interest, hedge, right to dividends, voting agreement, performance-related fee or arrangement to borrow or lend shares (whether or not subject to payment, settlement, exercise or conversion in any such class or series), and any proportionate interest of such Proponent in the securities of the Corporation held by any general or limited partnership, or any limited liability company, of which such Proponent is, directly or indirectly, a general partner or managing member.
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(c)
A stockholder providing written notice required by Section 2.1(b)(i) or (ii) shall update and supplement such notice
in writing, if necessary, so that the information provided or required to be provided in such notice is true and correct in all
material respects as of (i) the record date for the determination of stockholders entitled to notice of the meeting, and (ii) the
date that is ten (10) business days prior to the meeting and, in the event of any adjournment or postponement thereof, five
(5) business days prior to such adjourned or postponed meeting. In the case of an update and supplement pursuant to clause
(i) of this Section 2.1(c), such update and supplement shall be received by the Secretary of the Corporation at the principal
executive offices of the Corporation not later than five (5) business days after the record date for the meeting. In the case
of an update and supplement pursuant to clause (ii) of this Section 2.1(c), such update and supplement shall be received
by the Secretary at the principal executive offices of the Corporation not later than two (2) business days prior to the date
for the meeting, and, in the event of any adjournment or postponement thereof, two (2) business days prior to such adjourned
or postponed meeting.
(d)
Notwithstanding anything in Section 2.1(b)(iii) to the contrary, in the event that the number of directors of the Board is
increased and there is no public announcement of the appointment of a director, or, if no appointment was made, of the vacancy,
made by the Corporation at least ten (10) days before the last day a stockholder may deliver a notice of nomination in accordance
with Section 2.1(b)(iii), a stockholder’s notice required by this Section 2.1 and which complies with the requirements
in Section 2.1(b)(i), other than the timing requirements in Section 2.1(b)(iii), shall also be considered timely, but
only with respect to nominees for any new positions created by such increase, if it shall be received by the Secretary of the Corporation
at the principal executive offices 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.
(e)
A person shall not be eligible for election or re-election as a director unless the person is nominated either in accordance with
clause (ii) of Section 2.1(a), or in accordance with clause (iii) of Section 2.1(a). Except as otherwise required
by law, the Chairperson of the meeting shall have the power and duty to determine whether a nomination or any business proposed
to be brought before the meeting was made, or proposed, as the case may be, in accordance with the procedures set forth in these
Bylaws and, if any proposed nomination or business is not in compliance with these Bylaws, or the Proponent does not act in accordance
with the representations in Sections 2.1(b)(iv)(D) and 2.1(b)(iv)(E), to declare that such proposal or nomination shall not be
presented for stockholder action at the meeting and shall be disregarded, notwithstanding that proxies in respect of such nominations
or such business may have been solicited or received.
(f)
Notwithstanding the foregoing provisions of this Section 2.1, in order to include information with respect to a stockholder
proposal in the proxy statement and form of proxy for a stockholders’ meeting, a stockholder must also comply with all applicable
requirements of the 1934 Act and the rules and regulations thereunder. Nothing in these Bylaws shall be deemed to affect any rights
of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the 1934
Act;
provided
,
however
, that any references in these Bylaws to the 1934 Act or the rules and regulations
thereunder are not intended to and shall not limit the requirements applicable to proposals and/or nominations to be considered
pursuant to Section 2.1(a)(iii).
(g)
For purposes of Sections 2.1 and 2.2,
(i)
“
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 1934 Act; and
(ii)
“
affiliates
” and “
associates
” shall have the meanings set forth in Rule 405
under the Securities Act of 1933, as amended (the “
1933 Act
”).
2.2 Special Meetings
(a)
Special meetings of the stockholders of the Corporation may be called, for any purpose as is a proper matter for stockholder action
under Delaware law, by (i) the Chairperson of the Board, (ii) the Chief Executive Officer, or (iii) the Board pursuant
to a resolution adopted by a majority of the total number of authorized directors (whether or not there exist any vacancies in
previously authorized directorships at the time any such resolution is presented to the Board for adoption). A special meeting
may not be called by any other person or persons.
(b)
For a special meeting called pursuant to Section 2.2(a), the Board shall determine the time and place of such special meeting.
Following determination of the time and place of the meeting, the Secretary shall cause a notice of meeting to be given to the
stockholders entitled to vote, in accordance with the provisions of Section 2.4. No business may be transacted at a special
meeting otherwise than as specified in the notice of meeting.
(c)
Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be
elected (i) by or at the direction of the Board, or (ii) by any stockholder who is a stockholder of record at the time
of giving notice provided for in this paragraph, who shall be entitled to vote at the meeting and who delivers written notice to
the Secretary of the Corporation setting forth the information required by Section 2.1(b)(i). In the event the Corporation
calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder of
record 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 written notice setting forth the information required by Section 2.1(b)(i) shall be received by the
Secretary of the Corporation at the principal executive offices of the Corporation not later than the close of business on the
later of the ninetieth (90th) day prior to such 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 to be elected at such meeting. The stockholder
shall also update and supplement such information as required under Section 2.1(c). In no event shall an adjournment or a
postponement of a special meeting for which notice has been given, or the public announcement thereof has been made, commence a
new time period for the giving of a stockholder’s notice as described above.
(d)
Notwithstanding the foregoing provisions of this Section 2.2, a stockholder must also comply with all applicable requirements
of the 1934 Act and the rules and regulations thereunder with respect to matters set forth in this Section 2.2. Nothing in
these Bylaws shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s
proxy statement pursuant to Rule 14a-8 under the 1934 Act;
provided
,
however
, that any references in these
Bylaws to the 1934 Act or the rules and regulations thereunder are not intended to and shall not limit the requirements applicable
to nominations for the election to the Board and/or proposals of other business to be considered pursuant to Section 2.2(c).
2.3 Place of Meeting
All
meetings shall be held at the principal office of the Corporation, or at such other place as designated by the Board, either within
or without the State of Delaware.
2.4 Notice of Meeting
(a)
The Corporation shall cause to be delivered to each stockholder entitled to notice of, or to vote at, an annual or special meeting
of stockholders, either personally or by mail, not less than ten (10) days nor more than sixty (60) days before that
meeting, written notice stating the date, time and place of that meeting, the means of remote communication, if any, by which stockholders
and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting, the purpose
or purposes for which that meeting is called.
(b)
Notice to a stockholder of an annual or special stockholders’ meeting shall be in writing. Such notice, if in comprehensible
form, is effective (i) when mailed, if it is deposited in the United States mail, postage pre-paid, and is correctly addressed
to that stockholder’s address as specified in the Corporation’s then current record of stockholders, or (ii) when
received by that stockholder, if it is delivered by electronic transmission, facsimile transmission or private courier.
(c)
If an annual or special stockholders’ meeting is adjourned to a different date, time, or place, notice of the new date, time,
or place shall not be required if the new date, time, or place is announced at that meeting before adjournment, unless a new record
date for the adjourned meeting is, or must be, fixed pursuant to (i) Section 2.6, or (ii) the DGCL.
2.5 Waiver of Notice
(a)
Whenever any notice is required to be given to any stockholder pursuant to the provisions of these Bylaws, the Certificate of Incorporation
or the DGCL, a waiver thereof in writing, signed by the person or persons entitled to such notice or by electronic transmission
by such person, whether before or after such meeting, and delivered to the Corporation for inclusion in the minutes for filing
with the corporate records, shall be deemed equivalent to the giving of such notice.
(b)
The attendance of a stockholder at a meeting in person, by remote communication or, if applicable, by proxy shall be a waiver of
each objection to lack of, or defect in, notice of such meeting or of consideration of a particular matter at that meeting, unless
that stockholder, at the beginning of that meeting or prior to consideration of such matter, objects to holding that meeting, transacting
business at that meeting, or considering the matter when presented at that meeting.
2.6 Fixing of Record Date
for Determining Stockholders
For
the purpose of determining stockholders entitled to notice of, or to vote at, any meeting of stockholders, or any adjournment thereof,
or stockholders entitled to receive payment of any dividend, or to make a determination of stockholders for any other purpose,
the Board may fix in advance a date as the record date for any such determination. Such record date shall be not more than sixty
(60) days nor less than ten (10) days prior to the date of any such meeting nor more than sixty (60) days before
any other action to which the record date relates. If no record date is fixed for the determination of stockholders entitled to
notice of, or to vote at, a meeting, or to receive payment of a dividend, the record date shall be the close of business on the
day next preceding the day on which notice is given, or if notice is waived, at the close of business on the day next preceding
the day on which the meeting is held. Such determination shall apply to any adjournment of that meeting;
provided
,
however
,
that the Board may fix a new record date for 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 Section 213 of the DGCL and this Section 2.6 at the adjourned meeting.
2.7 Stockholders’
List
At
least ten (10) days before every meeting of stockholders, a complete alphabetical list of the stockholders entitled to notice
of that meeting shall be made, arranged by voting group, and within each voting group by class or series, with the address of and
number of shares held by each stockholder;
provided
,
however
, if the record date for determining the stockholders
entitled to vote is less than ten (10) days before the meeting date, the list will reflect the stockholders entitled to vote
as of the tenth (10th) day before the meeting. If the meeting is to be held at a place, then the list shall be produced and
kept at the time and place of the meeting during the whole time thereof, and may be examined by any stockholder who is present.
If the meeting is held solely by means of remote communication, then the list shall also be open to the examination of any stockholder
during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such
list shall be provided with the notice of the meeting. Such list shall presumptively determine the identity of the stockholders
entitled to vote at the meeting and then number of shares held by each of them.
2.8 Quorum
The
holders of a majority of the voting power of the capital stock issued and outstanding and entitled to vote, represented in person
or by proxy, shall constitute a quorum for the transaction of business at all meetings of stockholders. If a quorum is not present
for a matter to be acted upon, then either (a) the Chairperson of the meeting, or (b) a majority of the voting power
of the stockholders entitled to vote at that meeting may adjourn that meeting from time to time. If the necessary quorum is present
or represented at a reconvened meeting following such an adjournment, any business may be transacted that might have been transacted
at the meeting as originally called.
2.9 Manner of Acting
If
a quorum exists, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within
the voting group favoring the action exceed the votes cast opposing the action, unless the affirmative vote of a greater number
is required by these Bylaws, the Certificate of Incorporation or the DGCL.
2.10 Proxies
A
stockholder may vote by proxy executed in writing by that stockholder or by his or her attorney-in-fact. Such proxy shall be effective
when received by the Secretary of the Corporation or other officer or agent authorized to tabulate votes at the meeting, but no
such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. All proxies
must be filed with the Secretary of the Corporation at the beginning of each meeting in order to be counted in any vote at the
meeting. Subject to the limitation set forth in the last clause of the second sentence of this Section 2.10, a duly executed
proxy that does not state that it is irrevocable shall continue in full force and effect unless (a) revoked by the person
executing it, before the vote pursuant to that proxy, by a writing delivered to the Corporation stating that the proxy is revoked
or by a subsequent proxy executed by, or attendance at the meeting and voting in person by, the person executing the proxy, or
(b) written notice of the death or incapacity of the maker of that proxy is received by the Corporation before the vote pursuant
to that proxy is counted.
2.11 Voting of Shares
Each
outstanding share entitled to vote shall be entitled to one vote upon each matter submitted to a vote at a meeting of stockholders.
2.12 Voting for Directors
Each
stockholder may vote, in person or by proxy, the number of shares owned by such stockholder that are entitled to vote at an election
of directors, for as many persons as there are directors to be elected and for whose election such shares have a right to vote.
Unless otherwise provided in the Certificate of Incorporation, directors are elected by a plurality of the votes cast by shares
present in person or represented by proxy at the meeting and entitled to vote in the election at a meeting at which a quorum is
present.
2.13 Voting of Shares by
Corporation
The
Chairperson of the Board, the President, any vice president, the treasurer, the Secretary or assistant Secretary of the Corporation,
or any other person authorized by the Board or the president or a vice president, is authorized to vote, represent, and exercise
on behalf of the Corporation all rights incident to any and all shares of any other corporation or corporations standing in the
name of the Corporation. The authority granted herein may be exercised either by such person directly or by any other person authorized
to do so by proxy or power of attorney duly executed by such person having the authority.
2.14 Adjournment And Notice
Of Adjourned Meetings
Any
meeting of stockholders, whether annual or special, may be adjourned from time to time either by the Chairperson of the meeting
or by the vote of a majority of the shares present in person, by remote communication, if applicable, or represented by proxy at
the meeting. When a meeting is adjourned to another time or place, if any, notice need not be given of the adjourned meeting if
the date, time and place, if any, thereof and the means of remote communications (if any) by which the stockholders and proxy holders
may be deemed 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 adjournment is for more than 30 days or a new record date is fixed for the adjourned meeting, a notice of the adjourned
meeting will be given to each stockholder of record entitled to vote at the meeting. At the adjourned meeting, the Corporation
may transact any business which might have been transacted at the original meeting.
2.15 Action Without Meeting
No
action shall be taken by the stockholders except at an annual or special meeting of stockholders called in accordance with these
Bylaws, and no action shall be taken by the stockholders by written consent or by electronic transmission.
2.16 Organization
(a)
At every meeting of stockholders, the Chairperson of the Board, or, if a Chairperson has not been appointed or is absent, the president,
or, if the president is absent, a Chairperson of the meeting chosen by a majority in interest of the stockholders entitled to vote,
present in person or by proxy, shall act as Chairperson. The secretary, or another person directed to do so by the president, shall
act as secretary of the meeting.
(b)
The Board shall be entitled to make such rules or regulations for the conduct of meetings of stockholders as it shall deem necessary,
appropriate or convenient. Subject to such rules and regulations of the Board, if any, the Chairperson of the meeting shall have
the right and authority to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such
Chairperson, are necessary, appropriate or convenient for the proper conduct of the meeting, including, without limitation, establishing
an agenda or order of business for the meeting, rules and procedures for maintaining order at the meeting and the safety of those
present, limitations on participation in such meeting to stockholders of record of the corporation and their duly authorized and
constituted proxies and such other persons as the Chairperson shall permit, restrictions on entry to the meeting after the time
fixed for the commencement thereof, limitations on the time allotted to questions or comments by participants and regulation of
the opening and closing of the polls for balloting on matters which are to be voted on by ballot. 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.
Unless and to the extent determined by the Board or the Chairperson of the meeting, meetings of stockholders shall not be required
to be held in accordance with rules of parliamentary procedure.
2.17 Inspectors of Election
The
Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors of election to act at the meeting
and make a written report thereof. The Corporation may designate one or more persons to act 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 shall appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the discharge of
his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according
to the best of his or her ability.
Such inspectors
shall:
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(a)
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determine the number of shares outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum, and the authenticity, validity, and effect of proxies;
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(b)
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receive votes, ballots or consents;
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(c)
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hear and determine all challenges and questions in any way arising in connection with the right to vote;
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(d)
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count and tabulate all votes or consents;
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(e)
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determine when the polls shall close;
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(f)
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determine the result; and
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(g)
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do any other acts that may be proper to conduct the election or vote with fairness to all stockholders.
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SECTION 3. BOARD
OF DIRECTORS
3.1 General Powers
The
business and affairs of the Corporation shall be managed by the Board, except as may be otherwise provided in these Bylaws, the
Certificate of Incorporation or the DGCL.
3.2 Number, Tenure and Qualifications
The
authorized number of directors shall be determined from time to time by resolution of the Board;
provided
that
the Board shall consist of at least one (1) member. No reduction of the authorized number of directors shall have the effect
of removing any director before that director’s term of office expires. The terms of the directors expire at the next annual
stockholder’s meeting following their election. Despite the expiration of a director’s term, however, the director
shall continue to serve until such director’s successor is elected and qualifies. Directors need not be stockholders unless
so required by the Certificate of Incorporation.
3.3 Annual and Regular Meetings
An
annual meeting of the Board shall be held without additional notice immediately after and at the same place as the annual meeting
of stockholders.
By
resolution, the Board, or any committee thereof, may specify the time and place for holding regular meetings thereof, either within
or outside the State of Delaware, without notice other than such resolution.
3.4 Special Meetings
Special
meetings of the Board or any committee designated by the Board may be called by or at the request of the Chairperson of the Board,
or the President or any two directors and, in the case of any special meeting of any committee designated by the Board, by the
Chairperson thereof. The person or persons authorized to call special meetings may fix any place either within or without the State
of Delaware as the place for holding any special Board or committee meeting called by them.
3.5 Meetings by Telecommunications
Members
of the Board or any committee designated by the Board may participate in a meeting of the Board or such committee by use of any
means of telecommunications equipment pursuant to which all persons participating may simultaneously hear each other during such
meeting. Participation by such method shall be deemed presence in person at such meeting.
3.6 Notice of Special Meetings
Notice
of a special Board or committee meeting specifying the date, time and place of such meeting shall be given to a director in writing,
by electronic transmission or orally by telephone or in person as specified below. Neither the business to be transacted at, nor
the purpose of, any special meeting need be specified in the notice of such meeting.
3.6.1 Personal
Delivery
If
delivery is by personal service, the notice shall be effective if delivered at the address specified on the records of the Corporation
at least 24 hours before the date and time of the meeting.
3.6.2 Delivery
by Mail
If
notice is delivered by mail, the notice shall be deemed effective if deposited in the official government mail at least five (5) days
before the date and time of the meeting properly addressed to a director at his or her address specified on the records of the
Corporation with postage prepaid.
3.6.3 Oral
Notice
If
notice is delivered orally, by telephone or in person, the notice shall be effective if personally given to a director at least
24 hours before the date and time of the meeting.
3.6.4 Notice
by Facsimile Transmission
If
notice is delivered by facsimile transmission, the notice shall be deemed effective if the content thereof is transmitted to the
office of a director, at the facsimile number specified on the records of the Corporation, at least 24 hours before the date and
time of the meeting, and receipt is either confirmed by confirming transmission equipment or acknowledged by the receiving office.
3.6.5 Notice
by Private Courier
If
notice is delivered by private courier, the notice shall be deemed effective if delivered to the courier, properly addressed and
prepaid, by such time that the courier guarantees delivery at least 24 hours before the date and time of the meeting.
3.6.6 Notice
by Other Electronic Means
If
notice is delivered by electronic mail or other electronic means, the notice shall be delivered at least 24 hours before the date
and time of the meeting.
3.7 Waiver of Notice
3.7.1 Written
Waiver
Whenever
any notice is required to be given to any director pursuant to the provisions of these Bylaws, the Certificate of Incorporation
or the DGCL, a waiver thereof in writing, executed at any time, specifying the meeting for which notice is waived, signed by the
person or persons entitled to such notice, and filed with the minutes or corporate records, shall be deemed equivalent to the giving
of such notice.
Waiver
of notice by electronic transmission shall be the equivalent of an executed written waiver and may be delivered at any time before
or after the meeting.
3.7.2 Waiver
by Attendance
The
attendance of a director at a Board or committee meeting shall constitute a waiver of notice of such meeting, unless such director,
at the beginning of the meeting, or promptly upon such director’s arrival, objects to holding the meeting or transacting
any business at the meeting and does not thereafter vote for or assent to action taken at the meeting.
3.8 Quorum
A
majority of the number of directors determined by or in the manner provided by these Bylaws shall constitute a quorum for the transaction
of business at any meeting of the Board.
3.9 Manner of Acting
The
act of the majority of the directors present at a Board or committee meeting at which there is a quorum shall be the act of the
Board or committee, unless the vote of a greater number is required by these Bylaws, the Certificate of Incorporation or the DGCL.
3.10 Action
by Board of Directors or Committee Without a Meeting
Any
action which could be taken at a meeting of the Board or of any committee appointed by the Board may be taken without a meeting,
if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and such
writing or writings or transmission or transmissions are filed with the minutes of proceedings of the Board or committee. The action
shall be effective when the last signature is placed on the consent, unless the consent specifies an earlier or later date. Such
written consent, which shall have the same effect as a unanimous vote of the directors or such committee, shall be inserted in
the minute book as if it were the minutes of a Board or committee meeting.
3.11 Resignation
Any
director may resign at any time by delivering notice in writing or by electronic transmission to the Chairperson of the Board,
the Board, or to the registered office of the Corporation. Such resignation shall take effect at the time specified in the notice,
or if no time is specified, upon delivery. Unless otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Once delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board.
3.12 Removal
Subject
to any limitations imposed by the DGCL, one or more members of the Board (including the entire Board) may be removed at any time,
with or without cause, by the affirmative vote of the holders of a majority of the voting power of all the then outstanding shares
of voting stock of the Corporation entitled to vote at an election of directors. No reduction of the authorized number of directors
shall have the effect of removing any director prior to the expiration of such director’s term of office.
3.13 Vacancies
Any
vacancy occurring on the Board, including a vacancy resulting from an increase in the number of directors, may be filled by the
stockholders, by the Board, by the affirmative vote of a majority of the remaining directors though less than a quorum of the Board,
or by a sole remaining director. A director elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor
in office; except that the term of a director elected by the Board to fill a vacancy expires at the next stockholders’ meeting
at which directors are elected. Any directorship to be filled by reason of an increase in the number of directors may be filled
by the affirmative vote of a majority of the number of directors fixed by these Bylaws prior to such increase for a term of office
continuing only until the next election of directors by the stockholders. Any directorship not so filled by the directors shall
be filled by election at the next annual meeting of stockholders or at a special meeting of stockholders called for that purpose.
A vacancy that will occur at a specific later date by reason of a resignation effective at such later date or otherwise may be
filled before the vacancy occurs, but the new director may not take office until the vacancy occurs.
If
at any time, by reason of death or resignation or other cause, the Corporation should have no directors in office, then any officer
or any stockholder or an executor, administrator, trustee or guardian of a stockholder, or other fiduciary entrusted with like
responsibility for the person or estate of a stockholder, may call a special meeting of stockholders in accordance with the provisions
of the Certificate of Incorporation or these Bylaws, or may apply to the Court of Chancery for a decree summarily ordering an election
as provided in Section 211 of the DGCL.
If,
at the time of filling any vacancy or any newly created directorship, the directors then in office constitute less than a majority
of the whole Board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any
stockholder or stockholders holding at least 10% of the voting stock at the time outstanding having the right to vote for such
directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the
directors chosen by the directors then in office as aforesaid, which election shall be governed by the provisions of Section 211
of the DGCL as far as applicable.
3.14 Minutes
The
Board shall keep minutes of its meetings and shall cause them to be recorded in books kept for that purpose.
3.15 Executive and Other
Committees
3.15.1 Creation
of Committees
The
Board, by resolution adopted by a majority of the number of directors fixed in the manner provided by these Bylaws, may appoint
standing or temporary committees, including an Executive Committee, from its own number. The Board may designate one or more directors
as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the
absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified
from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to
act at the meeting in the place of any such absent or disqualified member. The Board may invest such committee(s) with such powers
as it may see fit, subject to such conditions as may be prescribed by the Board, these Bylaws, the Certificate of Incorporation
and the DGCL.
3.15.2 Authority
of Committees
Any
such committee, to the extent provided in the resolution of the Board or in these Bylaws, shall have and may exercise all the powers
and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the
Corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority to (a) approve
or adopt, or recommend to the stockholders, any action or matter (other than the election or removal of directors) expressly required
by the DGCL to be submitted to stockholders for approval, or (b) adopt, amend or repeal any Bylaw of the Corporation.
3.15.3 Quorum
and Manner of Acting
A
majority of the number of directors composing any committee of the Board, as established and fixed by resolution of the Board,
shall constitute a quorum for the transaction of business at any meeting of such committee.
3.15.4 Minutes
of Meetings
All
committees so appointed shall keep regular minutes of their meetings and shall cause them to be recorded in books kept for that
purpose.
3.15.5 Resignation
Any
member of any committee may resign at any time by delivering written notice thereof to the Board, the Chairperson of the Board
or the Corporation. Any such resignation shall take effect at the time specified in the notice, or if no time is specified, upon
delivery. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. Once
delivered, a notice of resignation is irrevocable unless revocation is permitted by the Board.
3.15.6 Removal
The
Board may remove from office any member of any committee elected or appointed by it, but only by the affirmative vote of not less
than a majority of the number of directors fixed by or in the manner provided by these Bylaws.
3.16 Compensation
By
resolution of the Board, directors and committee members may be paid their expenses, if any, of attendance at each Board or committee
meeting, or a fixed sum for attendance at each Board or committee meeting, or a staled salary as a director or a committee member,
or a combination of the foregoing. No such payment shall preclude any director or committee member from serving the Corporation
in any other capacity and receiving compensation therefor.
3.17 Chairperson of the
Board of Directors
If
appointed, the Chairperson of the Board shall perform such duties as shall be assigned to him or her by the Board from time to
time and shall preside over meetings of the Board and stockholders unless an officer is appointed or designated by the Board as
Chairperson of such meeting.
SECTION 4. OFFICERS
4.1 Number
The
officers of the Corporation shall be a President, a Secretary and a Treasurer, or the equivalent thereof, each of whom shall be
appointed by the Board. One or more Vice Presidents and such other officers and assistant officers, including a Chairperson of
the Board, may be appointed by the Board; such officers and assistant officers to hold office for such period, have such authority
and perform such duties as are provided in these Bylaws or as may be provided by resolution of the Board. Any officer may be assigned
by the Board any additional title that the Board deems appropriate. The Board may delegate to any officer or agent the power to
appoint any such subordinate officers or agents and to prescribe their respective terms of office, authority and duties. Any two
or more offices may be held by the same person.
4.2 Appointment and Term
of Office
The
officers of the Corporation shall be appointed by the Board. Unless an officer dies, resigns, or is removed from office, he or
she shall hold office until his or her successor is appointed.
4.3 Resignation
Any
officer may resign at any time by delivering notice in writing or by electronic transmission to the Corporation. Any such resignation
shall take effect at the time specified in the notice, or if no time is specified, upon delivery. Unless otherwise specified therein,
the acceptance of such resignation shall not be necessary to make it effective. Once delivered, a notice of resignation is irrevocable
unless revocation is permitted by the Board.
4.4 Removal
Subject
to the rights, if any, of an officer or agent under any contract of employment, any officer or agent appointed by the Board may
be removed by the affirmative vote of a majority of directors in office at the time, with or without cause, but such removal shall
be without prejudice to the contract rights, if any, of the person so removed. Appointment of an officer or agent shall not of
itself create contract rights.
4.5 Vacancies
A
vacancy in any office because of death, resignation, removal, disqualification, creation of a new office or any other cause may
be filled by the Board for the unexpired portion of the term, or for a new term established by the Board. If a resignation is made
effective at a later date, and the Corporation accepts such future effective date, the Board may fill the pending vacancy before
the effective date, if the Board provides that the successor does not take office until the effective date.
4.6 Chairperson of the Board
of Directors
If
appointed, the position of Chairperson of the Board shall not constitute an officer position of the Corporation, unless specifically
designated as such by the Board. The Chairperson of the Board shall be a Board position as outlined in Section 3.17.
4.7 President
The
President shall be the chief executive officer of the Corporation unless some other officer is so designated by the Board, shall
preside over meetings of the Board and stockholders in the absence of a Chairperson of the Board and, subject to the Board’s
control, shall supervise and control all of the assets, business and affairs of the Corporation. The President shall have authority
to sign deeds, mortgages, bonds, contracts, or other instruments, except when the signing and execution thereof have been expressly
delegated by the Board or by these Bylaws to some other officer or agent of the Corporation, or are required by law to be otherwise
signed or executed by some other officer or in some other manner. In general, the President shall perform all duties incidental
to the office of the President and such other duties as are prescribed by the Board from time to time.
4.8 Vice President
In
the event of the death of the President or his or her inability to act, the Vice President (or if there is more than one Vice President,
the Vice President who was designated by the Board as the successor to the President, or if no Vice President is so designated,
the Vice President first appointed to such office) shall perform the duties of the President, except as may be limited by resolution
of the Board, with all the powers of and subject to all the restrictions upon the President. Vice Presidents shall have, to the
extent authorized by the President or the Board, the same powers as the President to sign deeds, mortgages, bonds, contracts or
other instruments. Vice Presidents shall perform such other duties as from time to time may be assigned to them by the President
or by the Board.
4.9 Secretary
The
Secretary shall (a) prepare and keep the minutes of meetings of the stockholders and the Board in one or more books provided
for that purpose; (b) see that all notices are duly given in accordance with the provisions of these Bylaws or as required
by law; (c) be responsible for custody of the corporate records and seal of the Corporation; (d) keep registers of the
address of each stockholder and director; (e) have general charge of the stock transfer books of the Corporation; and (f) in
general perform all duties incident to the office of Secretary and such other duties as from time to time may be assigned to him
or her by the President or by the Board. In the absence of the Secretary, an Assistant Secretary may perform the duties of the
Secretary.
4.10 Treasurer
If
required by the Board, the Treasurer shall give a bond for the faithful discharge of his or her duties in such amount and with
such surety or sureties as the Board shall determine. The Treasurer shall have charge and custody of and be responsible for all
funds and securities of the Corporation; receive and give receipts for moneys due and payable to the Corporation from any source
whatsoever, and deposit all such moneys in the name of the Corporation in banks, trust companies or other depositories selected
in accordance with the provisions of these Bylaws; and in general perform all of the duties incident to the office of Treasurer
and such other duties as from time to time may be assigned to him or her by the President or by the Board. In the absence of the
Treasurer, an Assistant Treasurer may perform the duties of the Treasurer.
4.11 Salaries
The
salaries of the officers shall be fixed from time to time by the Board or by any person or persons to whom the Board has delegated
such authority. No officer shall be prevented from receiving such salary by reason of the fact that he or she is also a Director
of the Corporation.
SECTION 5. CONTRACTS,
LOANS,
CHECKS AND DEPOSITS
5.1 Contracts
The
Board may authorize any officer or officers, or agent or agents, to enter into any contract or execute and deliver any instrument
in the name of and on behalf of the Corporation. Such authority may be general or confined to specific instances.
Unless so ratified
by the Board or within the agency power of an officer, no officer, agent or employee shall have any power or authority to bind
the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or any amount.
5.2 Loans to Directors,
Officers or Employees
Except
as otherwise prohibited under applicable law, the Corporation may lend money to or guarantee the obligation of a director, officer
or employee of the Corporation if the Board determines that the loan or guarantee may be reasonably expected to benefit the Corporation.
The fact that a loan or guarantee is made in violation of this provision shall not affect the borrower’s liability on the
loan.
5.3 Checks, Drafts, Etc.
All
checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation
shall be signed by such officer or officers, or agent or agents, of the Corporation and in such manner as is from time to time
determined by resolution of the Board.
SECTION 6. CERTIFICATES
FOR SHARES AND THEIR TRANSFER
6.1 Issuance of Shares
No
shares of the Corporation shall be issued unless authorized by the Board, which authorization shall include the maximum number
of shares to be issued and the consideration to be received for each share. Before the Corporation issues shares, the Board shall
determine that the consideration received or to be received for such shares is adequate. In the absence of fraud, such determination
by the Board shall be conclusive insofar as the adequacy of consideration for the issuance of shares relates to whether the shares
are validly issued, fully paid and nonassessable.
6.2 Certificates for Shares
The
shares of the Corporation shall be represented by certificates or shall be uncertificated. Certificates representing shares of
the Corporation, if any, shall be in such form as is consistent with the Certificate of Incorporation and applicable law and as
shall be determined by the Board. Such certificates shall be signed by, or in the name of the Corporation by the Chairperson of
the Board or the President or any Vice President and by the Treasurer or Assistant Treasurer or the Secretary or any Assistant
Secretary. Any or all of the signatures on the certificate may be a facsimile. The Corporation shall not have power to issue a
certificate in bearer form. All certificates shall be consecutively numbered or otherwise identified.
Notwithstanding
anything to the contrary in these Bylaws, at all times that the Corporation’s stock is listed on a stock exchange, such shares
shall comply with all direct registration system eligibility requirements established by such exchange, including any requirement
that shares of the Corporation’s stock be eligible for issue in book-entry form. All issuances and transfers of shares of
the Corporation’s stock shall be entered on the books of the Corporation with all information necessary to comply with such
direct registration system eligibility requirements, including the name and address of the person to whom the shares are issued,
the number of shares issued and the date of issue.
6.3 Stock Records
The
stock transfer books shall be kept at the registered office or principal place of business of the Corporation or at the office
of the Corporation’s transfer agent or registrar. The name and address of each person to whom shares are issued, together
with the class and number of shares represented by each stock certificate, if any, and the date of issue thereof, shall be entered
on the stock transfer books of the Corporation. The person in whose name shares stand on the books of the Corporation shall be
deemed by the Corporation to be the owner thereof for all purposes, and the Corporation shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person whether or not it shall have express or other
notice thereof, except as otherwise provided by the laws of Delaware.
6.4 Restriction on Transfer
6.4.1 Securities
Laws
A
written restriction on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the
Corporation that may be owned by any person or group of persons, if permitted by the DGCL and noted conspicuously on the certificate
representing such shares or, in the case of uncertificated shares, contained in a notice to the registered owner of such shares,
may be enforced against the holder of such shares or any successor or transferee of the holder including an executor, administrator,
trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of the holder.
6.4.2 Other
Restrictions
In
addition, the front or back of all certificates shall include conspicuous written notice of any further restrictions which may
be imposed on the transferability of such shares.
6.5 Transfer of Shares
Transfer
of shares of the Corporation shall be made only on the stock transfer books of the Corporation pursuant to authorization or document
of transfer made by the holder of record thereof or by his or her legal representative, who shall furnish proper evidence of authority
to transfer, or by his or her attorney-in-fact authorized by power of attorney duly executed and filed with the Secretary of the
Corporation. In the case of shares of the Corporation represented by certificates, certificates surrendered to the Corporation
for transfer shall be cancelled and no transfer of such shares shall be made until the former certificates for a like number of
shares have been surrendered and cancelled.
6.6 Lost or Destroyed Certificates
In
the case of shares of the Corporation represented by certificates, where such certificate or certificates are lost, destroyed or
mutilated, a new certificate may be issued therefor upon such terms and indemnity to the Corporation as the Board may prescribe.
6.7 Transfer Agent and Registrar
The
Board may from time to time appoint one or more Transfer Agents and one or more Registrars for the shares of the Corporation, with
such powers and duties as the Board shall determine by resolution.
6.8 Officer, Transfer Agent
or Registrar Ceasing to Act
In
case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has
ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with
the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
6.9 Fractional Shares
The Corporation
shall not issue fractional shares.
SECTION 7. BOOKS
AND RECORDS
The
Corporation shall keep correct and complete books and records of account, stock transfer books, minutes of the proceedings of its
stockholders and Board and such other records as may be necessary or advisable.
SECTION 8. FISCAL
YEAR
The
fiscal year of the Corporation shall be the calendar year;
provided
,
however
, that the Board may select
a different fiscal year by resolution at any time for purposes of federal income taxes, or otherwise.
SECTION 9. SEAL
The
Board may adopt a seal of the Corporation, which will consist of the name of the Corporation and the state of its incorporation.
SECTION 10. INDEMNIFICATION
10.1 Right to Indemnification
of Directors and Officers
Any
person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereafter a “
proceeding
”), by reason of the
fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation,
or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter
an “
indemnitee
”), shall be indemnified and held harmless by the Corporation to the fullest extent authorized
by the DGCL, 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 permitted prior thereto), against all expense,
liability and loss (including attorney’s fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in connection therewith,
provided
such person acted in good
faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. Such indemnification
shall continue as to an indemnitee who has ceased to be a director or officer and shall inure to the benefit of the indemnitee’s
heirs, executors and administrators;
provided
,
however
, that, except as provided in Section 10.3 or
with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection
with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the
Board.
10.2 Right to Advancement
of Expenses
The
right to indemnification conferred in Section 10.1 shall include the right to be paid by the Corporation the expenses incurred
in defending any proceeding for which such right to indemnification is applicable in advance of its final disposition (hereinafter
an “
advancement of expenses
”);
provided
,
however
, that, if the DGCL requires,
an advancement of expenses incurred by an indemnitee in his or her 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 (hereinafter 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 (hereinafter a “
final adjudication
”) that such indemnitee
is not entitled to be indemnified for such expenses under this Section or otherwise.
Notwithstanding
the foregoing, unless such right is acquired other than pursuant to this Section 10, no advance shall be made by the Corporation
to an officer of the Corporation (except by reason of the fact that such officer is or was a director of the Corporation, in which
event this paragraph shall not apply) in any action, suit or proceeding, whether civil, criminal, administrative or investigative,
if a determination is reasonably and promptly made (a) by the Board by a majority vote of the disinterested directors, even
though less than a quorum, or (b) by a committee of disinterested directors designated by majority vote of the disinterested
directors, even though less than a quorum, or (c) if there are no disinterested directors or the disinterested directors so
direct, by independent legal counsel in a written opinion to the Board, that the facts known to the decision-making party at the
time such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best interests of the Corporation.
10.3 Right of Indemnitee
to Bring Suit
The
rights to indemnification and to the advancement of expenses conferred in Sections 10.1 and 10.2 shall be contract rights. If a
claim under Sections 10.1 and 10.2 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 full
amount of the claim. If the indemnitee is 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 be entitled to be paid also
the expense of prosecuting or defending such suit to the fullest extent permitted by law. In any suit brought by the indemnitee
to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified,
or to such advancement of expenses, under this Section 10 or otherwise shall be on the Corporation.
10.4 Non-Exclusivity of
Rights
The
rights conferred on any person in this Section 10 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, these Bylaws, agreement, vote of stockholders
or disinterested directors or otherwise.
10.5 Insurance
The
Corporation may purchase and maintain insurance, at its expense, to protect itself and any person who was or is a director, officer,
employee or agent of the Corporation or was or is serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether
or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
10.6 Indemnification of
Employees and Agents of the Corporation
The
Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification, and to the advancement
of expenses, to any employee or agent of the Corporation to the fullest extent of the provisions of this Section 10 with respect
to the indemnification and advancement of expenses of directors and officers of the Corporation.
10.7 No Presumption of Bad
Faith
The
termination of any proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent shall
not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed
to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal proceeding, that the person
had reasonable cause to believe that the conduct was unlawful.
10.8 Survival of Rights
The
rights conferred on any person by this Section 10 shall continue as to a person who has ceased to be a director, officer,
employee or other agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
10.9 Amendments to Law
For
purposes of this Section 10, the meaning of “
law
” within the phrase “
to the fullest
extent not prohibited by law
” shall include, but not be limited to, the DGCL, as the same exists on the date hereof
or as it may be amended;
provided
,
however
, that in the case of any such amendment, such amendment shall
apply only to the extent that it permits the Corporation to provide broader indemnification rights than the DGCL permitted the
Corporation to provide prior to such amendment.
10.10 Savings Clause
If
this Section 10 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, the Corporation
shall indemnify each director, officer or other agent to the fullest extent permitted by any applicable portion of this Section 10
that shall not have been invalidated, or by any other applicable law.
10.11 Certain Definitions
For the purposes
of this Section 10, the following definitions shall apply:
(a)
The term “
proceeding
” shall be broadly construed and shall include, without limitation, the investigation,
preparation, prosecution, defense, settlement and appeal of any threatened, pending or completed action, suit or proceeding, whether
brought in the right of the Corporation or otherwise and whether civil, criminal, administrative or investigative, in which the
director or officer may be or may have been involved as a party or otherwise by reason of the fact that the director or officer
is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise.
(b)
The term “
expenses
” shall be broadly construed and shall include, without limitation, all costs, charges
and expenses (including fees and disbursements of attorneys, accountants and other experts) actually and reasonably incurred by
a director or officer in connection with any proceeding, all expenses of investigations, judicial or administrative proceedings
or appeals, and any expenses of establishing a right to indemnification under these Bylaws, but shall not include amounts paid
in settlement, judgments or fines.
(c)
“
Corporation
” shall mean GlyEco, Inc. and any successor corporation thereof. The term “
corporation
”
shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify
its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the
provisions of this Section 10 with respect to the resulting or surviving corporation as he would have with respect to such
constituent corporation if its separate existence had continued.
(d)
References to a “
director
”, “
executive officer
”, “
officer
”,
“
employee
” or “
agent
” of the Corporation shall include, without limitation,
situations where such person is serving at the request of the Corporation as, respectively, a director, executive officer, officer,
employee, trustee or agent of another corporation, partnership, joint venture, trust or other enterprise.
(e)
References to “
other enterprises
” shall include employee benefit plans. References to “
fines
”
shall include any excise taxes assessed on a person with respect to any employee benefit plan. References to “
serving
at the request of the Corporation
” shall include any service as a director, officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit
plan, its participants, or beneficiaries. A person who acted in good faith and in a manner the person reasonably believed to be
in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “
not
opposed to the best interests of the Corporation
” as referred to in this Section 10.
SECTION 11. AMENDMENTS
The
Board is expressly empowered to adopt, alter, amend or repeal these Bylaws. Any adoption, alteration, amendment or repeal of these
Bylaws by the Board shall require the approval of a majority of the authorized number of directors. The stockholders also shall
have power to adopt, alter, amend or repeal these Bylaws;
provided
,
however
, that, in addition to any vote
of the holders of any class or series of stock of the Corporation required by law or by the Certificate of Incorporation, such
action by stockholders shall require the affirmative vote of the holders of at least sixty-six and two-thirds percent (66-2/3%)
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.
The
foregoing Bylaws were adopted by the Board of Directors of the Corporation on ,
2019.
[___________________]
Secretary
APPENDIX F
FORM OF
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT
(this
“
Agreement
”) dated as of
, 20 , is made by and between
GLYECO, INC.,
a
Delaware corporation (the “
Company
”), and
(“
Indemnitee
”).
RECITALS
A.
The
Company desires to attract and retain the services of highly qualified individuals as directors, officers, employees and agents.
B.
The
Company’s bylaws (the “
Bylaws
”) require that the Company indemnify its directors, and empowers the Company
to indemnify its officers, employees and agents, as authorized by the General Corporation Law of the State of Delaware, as amended
(the “
DGCL
”), under which the Company is organized and such Bylaws expressly provide that the indemnification
provided therein is not exclusive and contemplates that the Company may enter into separate agreements with its directors, officers
and other persons to set forth specific indemnification provisions.
C.
Indemnitee
does not regard the protection currently provided by applicable law, the Company’s governing documents and available insurance
as adequate under the present circumstances, and the Company has determined that Indemnitee and other directors, officers, employees
and agents of the Company may not be willing to serve or continue to serve in such capacities without additional protection.
[
D.
The
Company and Indemnitee are parties to that certain Indemnity Agreement, dated on or about [ ]
(the
“Prior Agreement”
), and, subsequent to the parties entering into the Prior Agreement, the Company
reincorporated from the State of Nevada to the State of Delaware; and]
[D/E.]
The
Company desires and has requested Indemnitee to [serve][continue to serve] as a director, officer, employee or agent of the Company,
as the case may be, and has proffered this Agreement to Indemnitee as an additional inducement to serve in such capacity.
[
E./F.
This
Agreement would amend and restate the Prior Agreement, as set forth herein.]
[E./F./G.]
Indemnitee
is willing to serve, or to continue to serve, as a director, officer, employee or agent of the Company, as the case may be, if
Indemnitee is furnished the indemnity provided for herein by the Company.
AGREEMENT
NOW THEREFORE
,
in consideration of the mutual covenants and agreements set forth herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions.
(a) Agent
.
For purposes of this Agreement, the term “agent” of the Company means any person who: (i) is or was a director,
officer, employee or other fiduciary of the Company or a subsidiary of the Company; or (ii) is or was serving at the request
or for the convenience of, or representing the interests of, the Company or a subsidiary of the Company, as a director, officer,
employee or other fiduciary of a foreign or domestic corporation, partnership, joint venture, trust or other enterprise.
(b) Expenses
.
For purposes of this Agreement, the term “expenses” shall be broadly construed and shall include, without limitation,
all direct and indirect costs of any type or nature whatsoever (including, without limitation, all attorneys’, witness, or
other professional fees and related disbursements, and other out-of-pocket costs of whatever nature), actually and reasonably incurred
by Indemnitee in connection with the investigation, defense or appeal of a proceeding or establishing or enforcing a right to indemnification
under this Agreement, the DGCL or otherwise, and amounts paid in settlement by or on behalf of Indemnitee, but shall not include
any judgments, fines or penalties actually levied against Indemnitee for such individual’s violations of law. The term “expenses”
shall also include reasonable compensation for time spent by Indemnitee for which he is not compensated by the Company or any subsidiary
or third party (i) for any period during which Indemnitee is not an agent, in the employment of, or providing services for
compensation to, the Company or any subsidiary; and (ii) if the rate of compensation and estimated time involved is approved
by the directors of the Company who are not parties to any action with respect to which expenses are incurred, for Indemnitee while
an agent of, employed by, or providing services for compensation to, the Company or any subsidiary.
(c) Proceedings
.
For purposes of this Agreement, the term “proceeding” shall be broadly construed and shall include, without limitation,
any threatened, pending, or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or
otherwise and whether of a civil, criminal, administrative or investigative nature, and whether formal or informal in any case,
in which Indemnitee was, is or will be involved as a party or otherwise by reason of: (i) the fact that Indemnitee is or was
a director or officer of the Company; (ii) the fact that any action taken by Indemnitee or of any action on Indemnitee’s
part while acting as director, officer, employee or agent of the Company; or (iii) the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, and in any such case described above, whether or not serving in any such capacity at
the time any liability or expense is incurred for which indemnification, reimbursement, or advancement of expenses may be provided
under this Agreement.
(d) Subsidiary
.
For purposes of this Agreement, the term “subsidiary” means any corporation or limited liability company of which more
than 50% of the outstanding voting securities or equity interests are owned, directly or indirectly, by the Company and one or
more of its subsidiaries, and any other corporation, limited liability company, partnership, joint venture, trust, employee benefit
plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, employee,
agent or fiduciary.
(e) Independent
Counsel
. For purposes of this Agreement, the term “independent counsel” means a law firm, or a partner (or, if
applicable, member) of such a law firm, that is experienced in matters of corporation law and neither presently is, nor in the
past five (5) years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such
party, or (ii) any other party to the proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the
foregoing, the term “independent counsel” shall not include any person who, under the applicable standards of professional
conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement.
2. Agreement
to Serve
. Indemnitee will serve, or continue to serve, as a director, officer, employee or agent of the Company or any subsidiary,
as the case may be, faithfully and to the best of his or her ability, at the will of such corporation (or under separate agreement,
if such agreement exists), in the capacity Indemnitee currently serves as an agent of such corporation, so long as Indemnitee is
duly appointed or elected and qualified in accordance with the applicable provisions of the Bylaws or other applicable charter
documents of such corporation, or until such time as Indemnitee tenders his or her resignation in writing; provided, however, that
nothing contained in this Agreement is intended as an employment agreement between Indemnitee and the Company or any of its subsidiaries
or to create any right to continued employment of Indemnitee with the Company or any of its subsidiaries in any capacity.
The
Company acknowledges that it has entered into this Agreement and assumes the obligations imposed on it hereby, in addition to and
separate from its obligations to Indemnitee under the Bylaws, to induce Indemnitee to serve, or continue to serve, as a director,
officer, employee or agent of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving
as a director, officer, employee or agent of the Company.
3. Indemnification.
(a) Indemnification
in Third Party Proceedings
. Subject to Section 10 below, the Company shall indemnify Indemnitee to the fullest extent
permitted by the DGCL, as the same may be amended from time to time (but, only to the extent that such amendment permits Indemnitee
to broader indemnification rights than the DGCL permitted prior to adoption of such amendment), if Indemnitee is a party to or
threatened to be made a party to or otherwise involved in any proceeding, for any and all expenses, actually and reasonably incurred
by Indemnitee in connection with the investigation, defense, settlement or appeal of such proceeding.
(b) Indemnification
in Derivative Actions and Direct Actions by the Company
. Subject to Section 10 below, the Company shall indemnify Indemnitee
to the fullest extent permitted by the DGCL, as the same may be amended from time to time (but, only to the extent that such amendment
permits Indemnitee to broader indemnification rights than the DGCL permitted prior to adoption of such amendment), if Indemnitee
is a party to or threatened to be made a party to or otherwise involved in any proceeding by or in the right of the Company to
procure a judgment in its favor, against any and all expenses actually and reasonably incurred by Indemnitee in connection with
the investigation, defense, settlement, or appeal of such proceedings.
4. Indemnification
of Expenses of Successful Party
. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee has been
successful on the merits or otherwise in defense of any proceeding or in defense of any claim, issue or matter therein, including
the dismissal of any action without prejudice, the Company shall indemnify Indemnitee against all expenses actually and reasonably
incurred in connection with the investigation, defense or appeal of such proceeding.
5. Partial
Indemnification
. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some
or a portion of any expenses actually and reasonably incurred by Indemnitee in the investigation, defense, settlement or appeal
of a proceeding, but is precluded by applicable law or the specific terms of this Agreement to indemnification for the total amount
thereof, the Company shall nevertheless indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
6. Advancement
of Expenses
. To the extent not prohibited by law, the Company shall advance the expenses incurred by Indemnitee in connection
with any proceeding, and such advancement shall be made within twenty (20) days after the receipt by the Company of a statement
or statements requesting such advances (which shall include invoices received by Indemnitee in connection with such expenses but,
in the case of invoices in connection with legal services, any references to legal work performed or to expenditures made that
would cause Indemnitee to waive any privilege accorded by applicable law shall not be included with the invoice) and upon request
of the Company, an undertaking to repay the advancement of expenses if and to the extent that it is ultimately determined by a
court of competent jurisdiction in a final judgment, not subject to appeal, that Indemnitee is not entitled to be indemnified by
the Company. Advances shall be unsecured, interest free and without regard to Indemnitee’s ability to repay the expenses.
Advances shall include any and all expenses actually and reasonably incurred by Indemnitee pursuing an action to enforce Indemnitee’s
right to indemnification under this Agreement, or otherwise and this right of advancement, including expenses incurred preparing
and forwarding statements to the Company to support the advances claimed. Indemnitee acknowledges that the execution and delivery
of this Agreement shall constitute an undertaking providing that Indemnitee shall, to the fullest extent required by law, repay
the advance if and to the extent that it is ultimately determined by a court of competent jurisdiction in a final judgment, not
subject to appeal, that Indemnitee is not entitled to be indemnified by the Company. The right to advances under this Section 6
shall continue until final disposition of any proceeding, including any appeal therein. This Section 6 shall not apply to
any claim made by Indemnitee for which indemnity is excluded pursuant to Section 10(b).
7. Notice
and Other Indemnification Procedures.
(a) Notification
of Proceeding
. Indemnitee will notify the Company in writing promptly upon being served with any summons, citation, subpoena,
complaint, indictment, information or other document relating to any proceeding or matter which may be subject to indemnification
or advancement of expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company
of any obligation which it may have to Indemnitee under this Agreement or otherwise.
(b) Request
for Indemnification and Indemnification Payments
. Indemnitee shall notify the Company promptly in writing upon receiving notice
of any demand, judgment or other requirement for payment that Indemnitee reasonably believes to be subject to indemnification under
the terms of this Agreement, and shall request payment thereof by the Company. Indemnification payments requested by Indemnitee
under Section 3 hereof shall be made by the Company no later than sixty (60) days after receipt of the written request
of Indemnitee. Claims for advancement of expenses shall be made under the provisions of Section 6 herein.
(c) Application
for Enforcement
. In the event the Company fails to make timely payments as set forth in Sections 6 or 7(b) above, Indemnitee
shall have the right to apply to any court of competent jurisdiction for the purpose of enforcing Indemnitee’s right to indemnification
or advancement of expenses pursuant to this Agreement. In such an enforcement hearing or proceeding, the burden of proof shall
be on the Company to prove that indemnification or advancement of expenses to Indemnitee is not required under this Agreement or
permitted by applicable law. Any determination by the Company (including its Board of Directors, stockholders or independent counsel)
that Indemnitee is not entitled to indemnification hereunder, shall not be a defense by the Company to the action nor create any
presumption that Indemnitee is not entitled to indemnification or advancement of expenses hereunder.
(d) Indemnification
of Certain Expenses
. The Company shall indemnify Indemnitee against all expenses incurred in connection with any hearing or
proceeding under this Section 7 unless the Company prevails in such hearing or proceeding on the merits in all material respects.
8. Assumption
of Defense
. In the event the Company shall be requested by Indemnitee to pay the expenses of any proceeding, the Company, if
appropriate, shall be entitled to assume the defense of such proceeding, or to participate to the extent permissible in such proceeding,
with counsel reasonably acceptable to Indemnitee. Upon assumption of the defense by the Company and the retention of such counsel
by the Company, the Company shall not be liable to Indemnitee under this Agreement for any fees of counsel subsequently incurred
by Indemnitee with respect to the same proceeding, provided that Indemnitee shall have the right to employ separate counsel in
such proceeding at Indemnitee’s sole cost and expense. Notwithstanding the foregoing, if Indemnitee’s counsel delivers
a written notice to the Company stating that such counsel has reasonably concluded that there may be a conflict of interest between
the Company and Indemnitee in the conduct of any such defense or the Company shall not, in fact, have employed counsel or otherwise
actively pursued the defense of such proceeding within a reasonable time, then in any such event the fees and expenses of Indemnitee’s
counsel to defend such proceeding shall be subject to the indemnification and advancement of expenses provisions of this Agreement.
9. Insurance.
To
the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees,
or agents of the Company or of any subsidiary (“D&O Insurance”), Indemnitee shall be covered by such policy or
policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer,
employee or agent under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to the terms hereof,
the Company has D&O Insurance in effect, the Company shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary
or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding
in accordance with the terms of such policies.
10. Exceptions.
(a) Certain
Matters
. Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify Indemnitee on account of any proceeding with respect to (i) remuneration paid to Indemnitee if
it is determined by final judgment or other final adjudication that such remuneration was in violation of law (and, in this respect,
both the Company and Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for
liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims
for indemnification should be submitted to appropriate courts for adjudication, as indicated in Section 10(d) below); (ii) a
final judgment rendered against Indemnitee for an accounting, disgorgement or repayment of profits made from the purchase or sale
by Indemnitee of securities of the Company against Indemnitee or in connection with a settlement by or on behalf of Indemnitee
to the extent it is acknowledged by Indemnitee and the Company that such amount paid in settlement resulted from Indemnitee’s
conduct from which Indemnitee received monetary personal profit, pursuant to the provisions of Section 16(b) of the Securities
Exchange Act of 1934, as amended, or other provisions of any federal, state or local statute or rules and regulations thereunder;
(iii) a final judgment or other final adjudication that Indemnitee’s conduct was in bad faith, knowingly fraudulent
or deliberately dishonest or constituted willful misconduct (but only to the extent of such specific determination); or (iv) on
account of conduct that is established by a final judgment as constituting a breach of Indemnitee’s duty of loyalty to the
Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of the foregoing
sentence, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with
which indemnification is sought or a separate proceeding or action to establish rights and liabilities under this Agreement.
(b) Claims
Initiated by Indemnitee
. Any provision herein to the contrary notwithstanding, the Company shall not be obligated to indemnify
or advance expenses to Indemnitee with respect to proceedings or claims initiated or brought by Indemnitee against the Company
or its directors, officers, employees or other agents and not by way of defense, except (i) with respect to proceedings brought
to establish or enforce a right to indemnification under this Agreement or under any other agreement, provision in the Bylaws or
Certificate of Incorporation or applicable law, or (ii) with respect to any other proceeding initiated by Indemnitee that
is either approved by the Board of Directors or Indemnitee’s participation is required by applicable law. However, indemnification
or advancement of expenses may be provided by the Company in specific cases if the Board of Directors determines it to be appropriate.
(c) Unauthorized
Settlements
. Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms
of this Agreement to indemnify Indemnitee under this Agreement for any amounts paid in settlement of a proceeding effected without
the Company’s written consent. Neither the Company nor Indemnitee shall unreasonably withhold consent to any proposed settlement;
provided, however, that the Company may in any event decline to consent to (or to otherwise admit or agree to any liability for
indemnification hereunder in respect of) any proposed settlement if the Company is also a party in such proceeding and determines
in good faith that such settlement is not in the best interests of the Company and its stockholders.
(d) Securities
Act Liabilities
. Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms
of this Agreement to indemnify Indemnitee or otherwise act in violation of any undertaking appearing in and required by the rules
and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement
filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently
generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue
of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public
policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically
agrees that any such undertaking shall supersede the provisions of this Agreement and to be bound by any such undertaking.
11. Contribution
Claims.
(a)
If
the indemnification provided in Section 3 is unavailable in whole or in part and may not be paid to Indemnitee for any reason
other than those set forth in Section 10, then in respect to any proceeding in which the Company is jointly liable with Indemnitee
(or would be if joined in such proceeding), to the fullest extent permitted by applicable law, the Company, in lieu of indemnifying
Indemnitee, shall pay, in the first instance, for any and all expenses, actually and reasonably incurred by Indemnitee in connection
with the investigation, defense, settlement or appeal of such proceeding without requiring Indemnitee to contribute to such payment,
and the Company hereby waives and relinquishes any right of contribution it may have at any time against Indemnitee.
(b)
With
respect to a proceeding brought against directors, officers, employees or agents of the Company (other than Indemnitee), to the
fullest extent permitted by applicable law, the Company shall indemnify Indemnitee from any claims for contribution that may be
brought by any such directors, officers, employees or agents of the Company (other than Indemnitee) who may be jointly liable with
Indemnitee, to the same extent Indemnitee would have been entitled to such indemnification under this Agreement if such proceeding
had been brought against Indemnitee.
12. Nonexclusivity
and Survival of Rights
.
(a)
The
provisions for indemnification and advancement of expenses set forth in this Agreement shall not be deemed exclusive of any other
rights which Indemnitee may at any time be entitled under any provision of applicable law, the Company’s Certificate of Incorporation,
Bylaws or other agreements, both as to action in Indemnitee’s official capacity and Indemnitee’s action as an agent
of the Company, in any court in which a proceeding is brought, and Indemnitee’s rights hereunder shall continue after Indemnitee
has ceased acting as an agent of the Company and shall inure to the benefit of the heirs, executors, administrators and assigns
of Indemnitee. The obligations and duties of the Company to Indemnitee under this Agreement shall be binding on the Company and
its successors and assigns until terminated in accordance with its terms. The Company shall require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company,
expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required
to perform if no such succession had taken place.
(b)
No
amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under
this Agreement in respect of any action taken or omitted by such Indemnitee in his or her corporate status prior to such amendment,
alteration or repeal. To the extent that a change in the DGCL, whether by statute or judicial decision, permits greater indemnification
or advancement of expenses than would be afforded currently under the Company’s Certificate of Incorporation, the Bylaws
and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by this Agreement the greater benefits so
afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, by Indemnitee
shall not prevent the concurrent assertion or employment of any other right or remedy by Indemnitee.
13. Term
.
This Agreement shall continue until and terminate upon the later of: (a) five (5) years after the date that Indemnitee
shall have ceased to serve as a director or and/or officer, employee or agent of the Company; or (b) one (1) year after
the final termination of any proceeding, including any appeal then pending, in respect to which Indemnitee was granted rights of
indemnification or advancement of expenses hereunder.
No
legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against an Indemnitee
or an Indemnitee’s estate, spouse, heirs, executors or personal or legal representatives after the expiration of five (5) years
from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed
released unless asserted by the timely filing of a legal action within such five-year period; provided, however, that if any shorter
period of limitations is otherwise applicable to such cause of action, such shorter period shall govern.
14. Subrogation
.
In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who, at the request and expense of the Company, shall execute all papers required and shall do everything
that may be reasonably necessary to secure such rights, including the execution of such documents necessary to enable the Company
effectively to bring suit to enforce such rights.
15. Interpretation
of Agreement
. It is understood that the parties hereto intend this Agreement to be interpreted and enforced so as to provide
indemnification to Indemnitee to the fullest extent now or hereafter permitted by law.
16. Severability
.
If any provision of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever, (a) the
validity, legality and enforceability of the remaining provisions of the Agreement (including without limitation, all portions
of any paragraphs of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that are not themselves
invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, all portions of any paragraph of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable and to give effect
to Section 15 hereof.
17. Amendment
and Waiver
. No supplement, modification, amendment, or cancellation of this Agreement shall be binding unless executed in writing
by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
18. Notice
.
Except as otherwise provided herein, any notice or demand which, by the provisions hereof, is required or which may be given to
or served upon the parties hereto shall be in writing and, if by telegram, telecopy or telex, shall be deemed to have been validly
served, given or delivered when sent, if by overnight delivery, courier or personal delivery, shall be deemed to have been validly
served, given or delivered upon actual delivery and, if mailed, shall be deemed to have been validly served, given or delivered
three (3) business days after deposit in the United States mail, as registered or certified mail, with proper postage prepaid
and addressed to the party or parties to be notified at the addresses set forth on the signature page of this Agreement (or such
other address(es) as a party may designate for itself by like notice). If to the Company, notices and demands shall be delivered
to the attention of the Secretary of the Company.
19. Governing
Law
. This Agreement shall be governed exclusively by and construed according to the laws of the State of Delaware, as applied
to contracts between Delaware residents entered into and to be performed entirely within Delaware.
20. Counterparts
.
This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but
all of which together shall constitute but one and the same Agreement. Only one such counterpart need be produced to evidence the
existence of this Agreement.
21. Headings
.
The headings of the sections of this Agreement are inserted for convenience only and shall not be deemed to constitute part of
this Agreement or to affect the construction hereof.
22. Entire
Agreement
. This Agreement amends and restates the Prior Agreement in its entirety and constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and negotiations, written
and oral, between the parties with respect to the subject matter of this Agreement; provided, however, that this Agreement is a
supplement to and in furtherance of the Company’s Certificate of Incorporation, the Bylaws, the DGCL and any other applicable
law, and shall not be deemed a substitute therefor, and does not diminish or abrogate any rights of Indemnitee thereunder.
[
Signature Page Follows
]
In Witness Whereof
,
the parties hereto have entered into this Agreement effective as of the date first above written.
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GLYECO, INC.
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By:
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Name:
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Title:
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INDEMNITEE
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Signature of Indemnitee
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Print or Type Name of Indemnitee
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APPENDIX G
Nevada Revised Statutes – Sections
92A.300 – 92A.500
RIGHTS OF DISSENTING OWNERS
NRS 92A.300 Definitions.
As
used in NRS 92A.300 to 92A.500, inclusive, unless the context otherwise requires, the words and terms defined in NRS 92A.305 to
92A.335, inclusive, have the meanings ascribed to them in those sections.
(Added to NRS by 1995,
2086)
NRS 92A.305 “Beneficial
stockholder” defined.
“Beneficial stockholder” means a person who is a beneficial owner of shares
held in a voting trust or by a nominee as the stockholder of record.
(Added to NRS by 1995,
2087)
NRS 92A.310 “Corporate
action” defined.
“Corporate action” means the action of a domestic corporation.
(Added to NRS by 1995,
2087)
NRS 92A.315 “Dissenter”
defined.
“Dissenter” means a stockholder who is entitled to dissent from a domestic corporation’s
action under NRS 92A.380 and who exercises that right when and in the manner required by NRS 92A.400 to 92A.480, inclusive.
(Added to NRS by 1995,
2087; A 1999, 1631)
NRS 92A.320 “Fair
value” defined.
“Fair value,” with respect to a dissenter’s shares, means the value of the
shares determined:
1. Immediately
before the effectuation of the corporate action to which the dissenter objects, excluding any appreciation or depreciation in anticipation
of the corporate action unless exclusion would be inequitable;
2. Using
customary and current valuation concepts and techniques generally employed for similar businesses in the context of the transaction
requiring appraisal; and
3. Without
discounting for lack of marketability or minority status.
(Added to NRS by 1995,
2087; A 2009, 1720)
NRS 92A.325 “Stockholder”
defined.
“Stockholder” means a stockholder of record or a beneficial stockholder of a domestic corporation.
(Added to NRS by 1995,
2087)
NRS 92A.330 “Stockholder
of record” defined.
“Stockholder of record” means the person in whose name shares are registered
in the records of a domestic corporation or the beneficial owner of shares to the extent of the rights granted by a nominee’s
certificate on file with the domestic corporation.
(Added to NRS by 1995,
2087)
NRS 92A.335 “Subject
corporation” defined.
“Subject corporation” means the domestic corporation which is the issuer
of the shares held by a dissenter before the corporate action creating the dissenter’s rights becomes effective or the surviving
or acquiring entity of that issuer after the corporate action becomes effective.
(Added to NRS by 1995,
2087)
NRS 92A.340 Computation
of interest.
Interest payable pursuant to NRS 92A.300 to 92A.500, inclusive, must be computed from the effective
date of the action until the date of payment, at the rate of interest most recently established pursuant to NRS 99.040.
(Added to NRS by 1995,
2087; A 2009, 1721)
NRS 92A.350 Rights
of dissenting partner of domestic limited partnership.
A partnership agreement of a domestic limited partnership
or, unless otherwise provided in the partnership agreement, an agreement of merger or exchange, may provide that contractual rights
with respect to the partnership interest of a dissenting general or limited partner of a domestic limited partnership are available
for any class or group of partnership interests in connection with any merger or exchange in which the domestic limited partnership
is a constituent entity.
(Added to NRS by 1995,
2088)
NRS 92A.360 Rights
of dissenting member of domestic limited-liability company.
The articles of organization or operating agreement
of a domestic limited-liability company or, unless otherwise provided in the articles of organization or operating agreement, an
agreement of merger or exchange, may provide that contractual rights with respect to the interest of a dissenting member are available
in connection with any merger or exchange in which the domestic limited-liability company is a constituent entity.
(Added to NRS by 1995,
2088)
NRS 92A.370 Rights
of dissenting member of domestic nonprofit corporation.
1. Except
as otherwise provided in subsection 2, and unless otherwise provided in the articles or bylaws, any member of any constituent domestic
nonprofit corporation who voted against the merger may, without prior notice, but within 30 days after the effective date of the
merger, resign from membership and is thereby excused from all contractual obligations to the constituent or surviving corporations
which did not occur before the member’s resignation and is thereby entitled to those rights, if any, which would have existed
if there had been no merger and the membership had been terminated or the member had been expelled.
2. Unless
otherwise provided in its articles of incorporation or bylaws, no member of a domestic nonprofit corporation, including, but not
limited to, a cooperative corporation, which supplies services described in chapter 704 of NRS to its members only, and no
person who is a member of a domestic nonprofit corporation as a condition of or by reason of the ownership of an interest in real
property, may resign and dissent pursuant to subsection 1.
(Added to NRS by 1995,
2088)
NRS 92A.380 Right
of stockholder to dissent from certain corporate actions and to obtain payment for shares.
1. Except
as otherwise provided in NRS 92A.370 and 92A.390 and subject to the limitation in paragraph (f), any stockholder is entitled
to dissent from, and obtain payment of the fair value of the stockholder’s shares in the event of any of the following corporate
actions:
(a) Consummation
of a plan of merger to which the domestic corporation is a constituent entity:
(1) If approval
by the stockholders is required for the merger by NRS 92A.120 to 92A.160, inclusive, or the articles of incorporation, regardless
of whether the stockholder is entitled to vote on the plan of merger; or
(2) If the domestic
corporation is a subsidiary and is merged with its parent pursuant to NRS 92A.180.
(b) Consummation
of a plan of conversion to which the domestic corporation is a constituent entity as the corporation whose subject owner’s
interests will be converted.
(c) Consummation
of a plan of exchange to which the domestic corporation is a constituent entity as the corporation whose subject owner’s
interests will be acquired, if the stockholder’s shares are to be acquired in the plan of exchange.
(d) Any corporate
action taken pursuant to a vote of the stockholders to the extent that the articles of incorporation, bylaws or a resolution of
the board of directors provides that voting or nonvoting stockholders are entitled to dissent and obtain payment for their shares.
(e) Accordance
of full voting rights to control shares, as defined in NRS 78.3784, only to the extent provided for pursuant to NRS 78.3793.
(f) Any corporate
action not described in this subsection that will result in the stockholder receiving money or scrip instead of a fraction of a
share except where the stockholder would not be entitled to receive such payment pursuant to NRS 78.205, 78.2055 or 78.207.
A dissent pursuant to this paragraph applies only to the fraction of a share, and the stockholder is entitled only to obtain payment
of the fair value of the fraction of a share.
2. A stockholder
who is entitled to dissent and obtain payment pursuant to NRS 92A.300 to 92A.500, inclusive, may not challenge the corporate
action creating the entitlement unless the action is unlawful or fraudulent with respect to the stockholder or the domestic corporation.
3. Subject
to the limitations in this subsection, from and after the effective date of any corporate action described in subsection 1, no
stockholder who has exercised the right to dissent pursuant to NRS 92A.300 to 92A.500, inclusive, is entitled to vote his
or her shares for any purpose or to receive payment of dividends or any other distributions on shares. This subsection does not
apply to dividends or other distributions payable to stockholders on a date before the effective date of any corporate action from
which the stockholder has dissented. If a stockholder exercises the right to dissent with respect to a corporate action described
in paragraph (f) of subsection 1, the restrictions of this subsection apply only to the shares to be converted into a fraction
of a share and the dividends and distributions to those shares.
(Added to NRS by 1995,
2087; A 2001, 1414, 3199; 2003, 3189; 2005, 2204; 2007, 2438; 2009, 1721; 2011, 2814)
NRS 92A.390 Limitations
on right of dissent: Stockholders of certain classes or series; action of stockholders not required for plan of merger.
1. There
is no right of dissent with respect to a plan of merger, conversion or exchange in favor of stockholders of any class or series
which is:
(a) A covered
security under section 18(b)(1)(A) or (B) of the Securities Act of 1933, 15 U.S.C. § 77r(b)(1)(A) or (B), as amended;
(b) Traded in
an organized market and has at least 2,000 stockholders and a market value of at least $20,000,000, exclusive of the value of such
shares held by the corporation’s subsidiaries, senior executives, directors and beneficial stockholders owning more than
10 percent of such shares; or
(c) Issued by
an open end management investment company registered with the Securities and Exchange Commission under the Investment Company Act
of 1940, 15 U.S.C. §§ 80a-1 et seq., as amended, and which may be redeemed at the option of the holder at net asset value, unless
the articles of incorporation of the corporation issuing the class or series or the resolution of the board of directors approving
the plan of merger, conversion or exchange expressly provide otherwise.
2. The
applicability of subsection 1 must be determined as of:
(a) The record
date fixed to determine the stockholders entitled to receive notice of and to vote at the meeting of stockholders to act upon the
corporate action requiring dissenter’s rights; or
(b) The day before
the effective date of such corporate action if there is no meeting of stockholders.
3. Subsection
1 is not applicable and dissenter’s rights are available pursuant to NRS 92A.380 for the holders of any class or series
of shares who are required by the terms of the corporate action requiring dissenter’s rights to accept for such shares anything
other than cash or shares of any class or any series of shares of any corporation, or any other proprietary interest of any other
entity, that satisfies the standards set forth in subsection 1 at the time the corporate action becomes effective.
4. There
is no right of dissent for any holders of stock of the surviving domestic corporation if the plan of merger does not require action
of the stockholders of the surviving domestic corporation under NRS 92A.130.
5. There
is no right of dissent for any holders of stock of the parent domestic corporation if the plan of merger does not require action
of the stockholders of the parent domestic corporation under NRS 92A.180.
(Added to NRS by 1995,
2088; A 2009, 1722; 2013, 1285)
NRS 92A.400 Limitations
on right of dissent: Assertion as to portions only to shares registered to stockholder; assertion by beneficial stockholder.
1. A stockholder
of record may assert dissenter’s rights as to fewer than all of the shares registered in his or her name only if the stockholder
of record dissents with respect to all shares of the class or series beneficially owned by any one person and notifies the subject
corporation in writing of the name and address of each person on whose behalf the stockholder of record asserts dissenter’s
rights. The rights of a partial dissenter under this subsection are determined as if the shares as to which the partial dissenter
dissents and his or her other shares were registered in the names of different stockholders.
2. A beneficial
stockholder may assert dissenter’s rights as to shares held on his or her behalf only if the beneficial stockholder:
(a) Submits to
the subject corporation the written consent of the stockholder of record to the dissent not later than the time the beneficial
stockholder asserts dissenter’s rights; and
(b) Does so with
respect to all shares of which he or she is the beneficial stockholder or over which he or she has power to direct the vote.
(Added to NRS by 1995,
2089; A 2009, 1723)
NRS 92A.410 Notification
of stockholders regarding right of dissent.
1. If a
proposed corporate action creating dissenter’s rights is submitted to a vote at a stockholders’ meeting, the notice
of the meeting must state that stockholders are, are not or may be entitled to assert dissenter’s rights under NRS 92A.300 to
92A.500, inclusive. If the domestic corporation concludes that dissenter’s rights are or may be available, a copy of NRS
92A.300 to 92A.500, inclusive, must accompany the meeting notice sent to those record stockholders entitled to exercise dissenter’s
rights.
2. If the
corporate action creating dissenter’s rights is taken by written consent of the stockholders or without a vote of the stockholders,
the domestic corporation shall notify in writing all stockholders entitled to assert dissenter’s rights that the action was
taken and send them the dissenter’s notice described in NRS 92A.430.
(Added to NRS by 1995,
2089; A 1997, 730; 2009, 1723; 2013, 1286)
NRS 92A.420 Prerequisites
to demand for payment for shares.
1. If a
proposed corporate action creating dissenter’s rights is submitted to a vote at a stockholders’ meeting, a stockholder
who wishes to assert dissenter’s rights with respect to any class or series of shares:
(a) Must deliver
to the subject corporation, before the vote is taken, written notice of the stockholder’s intent to demand payment for his
or her shares if the proposed action is effectuated; and
(b) Must not
vote, or cause or permit to be voted, any of his or her shares of such class or series in favor of the proposed action.
2. If a
proposed corporate action creating dissenter’s rights is taken by written consent of the stockholders, a stockholder who
wishes to assert dissenter’s rights with respect to any class or series of shares must not consent to or approve the proposed
corporate action with respect to such class or series.
3. A stockholder
who does not satisfy the requirements of subsection 1 or 2 and NRS 92A.400 is not entitled to payment for his or her shares
under this chapter.
(Added to NRS by 1995,
2089; A 1999, 1631; 2005, 2204; 2009, 1723; 2013, 1286)
NRS 92A.430 Dissenter’s
notice: Delivery to stockholders entitled to assert rights; contents.
1. The
subject corporation shall deliver a written dissenter’s notice to all stockholders of record entitled to assert dissenter’s
rights in whole or in part, and any beneficial stockholder who has previously asserted dissenter’s rights pursuant to NRS
92A.400.
2. The
dissenter’s notice must be sent no later than 10 days after the effective date of the corporate action specified in NRS 92A.380,
and must:
(a) State where
the demand for payment must be sent and where and when certificates, if any, for shares must be deposited;
(b) Inform the
holders of shares not represented by certificates to what extent the transfer of the shares will be restricted after the demand
for payment is received;
(c) Supply a
form for demanding payment that includes the date of the first announcement to the news media or to the stockholders of the terms
of the proposed action and requires that the person asserting dissenter’s rights certify whether or not the person acquired
beneficial ownership of the shares before that date;
(d) Set a date
by which the subject corporation must receive the demand for payment, which may not be less than 30 nor more than 60 days after
the date the notice is delivered and state that the stockholder shall be deemed to have waived the right to demand payment with
respect to the shares unless the form is received by the subject corporation by such specified date; and
(e) Be accompanied
by a copy of NRS 92A.300 to 92A.500, inclusive.
(Added to NRS by 1995,
2089; A 2005, 2205; 2009, 1724; 2013, 1286)
NRS 92A.440 Demand
for payment and deposit of certificates; loss of rights of stockholder; withdrawal from appraisal process.
1. A stockholder
who receives a dissenter’s notice pursuant to NRS 92A.430 and who wishes to exercise dissenter’s rights must:
(a) Demand payment;
(b) Certify whether
the stockholder or the beneficial owner on whose behalf he or she is dissenting, as the case may be, acquired beneficial ownership
of the shares before the date required to be set forth in the dissenter’s notice for this certification; and
(c) Deposit the
stockholder’s certificates, if any, in accordance with the terms of the notice.
2. If a
stockholder fails to make the certification required by paragraph (b) of subsection 1, the subject corporation may elect to treat
the stockholder’s shares as after-acquired shares under NRS 92A.470.
3. Once
a stockholder deposits that stockholder’s certificates or, in the case of uncertified shares makes demand for payment, that
stockholder loses all rights as a stockholder, unless the stockholder withdraws pursuant to subsection 4.
4. A stockholder
who has complied with subsection 1 may nevertheless decline to exercise dissenter’s rights and withdraw from the appraisal
process by so notifying the subject corporation in writing by the date set forth in the dissenter’s notice pursuant to NRS
92A.430. A stockholder who fails to so withdraw from the appraisal process may not thereafter withdraw without the subject corporation’s
written consent.
5. The
stockholder who does not demand payment or deposit his or her certificates where required, each by the date set forth in the dissenter’s
notice, is not entitled to payment for his or her shares under this chapter.
(Added to NRS by 1995,
2090; A 1997, 730; 2003, 3189; 2009, 1724)
NRS 92A.450 Uncertificated
shares: Authority to restrict transfer after demand for payment.
The subject corporation may restrict the transfer
of shares not represented by a certificate from the date the demand for their payment is received.
(Added to NRS by 1995,
2090; A 2009, 1725)
NRS 92A.460 Payment
for shares: General requirements.
1. Except
as otherwise provided in NRS 92A.470, within 30 days after receipt of a demand for payment pursuant to NRS 92A.440, the subject
corporation shall pay in cash to each dissenter who complied with NRS 92A.440 the amount the subject corporation estimates
to be the fair value of the dissenter’s shares, plus accrued interest. The obligation of the subject corporation under this
subsection may be enforced by the district court:
(a) Of the county
where the subject corporation’s principal office is located;
(b) If the subject
corporation’s principal office is not located in this State, in the county in which the corporation’s registered office
is located; or
(c) At the election
of any dissenter residing or having its principal or registered office in this State, of the county where the dissenter resides
or has its principal or registered office.
The court shall dispose of the
complaint promptly.
2. The
payment must be accompanied by:
(a) The subject
corporation’s balance sheet as of the end of a fiscal year ending not more than 16 months before the date of payment, a statement
of income for that year, a statement of changes in the stockholders’ equity for that year or, where such financial statements
are not reasonably available, then such reasonably equivalent financial information and the latest available quarterly financial
statements, if any;
(b) A statement
of the subject corporation’s estimate of the fair value of the shares; and
(c) A statement
of the dissenter’s rights to demand payment under NRS 92A.480 and that if any such stockholder does not do so within
the period specified, such stockholder shall be deemed to have accepted such payment in full satisfaction of the corporation’s
obligations under this chapter.
(Added to NRS by 1995,
2090; A 2007, 2704; 2009, 1725; 2013, 1287)
NRS 92A.470 Withholding
payment for shares acquired on or after date of dissenter’s notice: General requirements.
1. A subject
corporation may elect to withhold payment from a dissenter unless the dissenter was the beneficial owner of the shares before the
date set forth in the dissenter’s notice as the first date of any announcement to the news media or to the stockholders of
the terms of the proposed action.
2. To the
extent the subject corporation elects to withhold payment, within 30 days after receipt of a demand for payment pursuant to NRS
92A.440, the subject corporation shall notify the dissenters described in subsection 1:
(a) Of the information
required by paragraph (a) of subsection 2 of NRS 92A.460;
(b) Of the subject
corporation’s estimate of fair value pursuant to paragraph (b) of subsection 2 of NRS 92A.460;
(c) That they
may accept the subject corporation’s estimate of fair value, plus interest, in full satisfaction of their demands or demand
appraisal under NRS 92A.480;
(d) That those
stockholders who wish to accept such an offer must so notify the subject corporation of their acceptance of the offer within 30
days after receipt of such offer; and
(e) That those
stockholders who do not satisfy the requirements for demanding appraisal under NRS 92A.480 shall be deemed to have accepted
the subject corporation’s offer.
3. Within
10 days after receiving the stockholder’s acceptance pursuant to subsection 2, the subject corporation shall pay in cash
the amount offered under paragraph (b) of subsection 2 to each stockholder who agreed to accept the subject corporation’s
offer in full satisfaction of the stockholder’s demand.
4. Within
40 days after sending the notice described in subsection 2, the subject corporation shall pay in cash the amount offered under
paragraph (b) of subsection 2 to each stockholder described in paragraph (e) of subsection 2.
(Added to NRS by 1995,
2091; A 2009, 1725; 2013, 1287)
NRS 92A.480 Dissenter’s
estimate of fair value: Notification of subject corporation; demand for payment of estimate.
1. A dissenter
paid pursuant to NRS 92A.460 who is dissatisfied with the amount of the payment may notify the subject corporation in writing
of the dissenter’s own estimate of the fair value of his or her shares and the amount of interest due, and demand payment
of such estimate, less any payment pursuant to NRS 92A.460. A dissenter offered payment pursuant to NRS 92A.470 who is dissatisfied
with the offer may reject the offer pursuant to NRS 92A.470 and demand payment of the fair value of his or her shares and
interest due.
2. A dissenter
waives the right to demand payment pursuant to this section unless the dissenter notifies the subject corporation of his or her
demand to be paid the dissenter’s stated estimate of fair value plus interest under subsection 1 in writing within 30 days
after receiving the subject corporation’s payment or offer of payment under NRS 92A.460 or 92A.470 and is entitled
only to the payment made or offered.
(Added to NRS by 1995,
2091; A 2009, 1726)
NRS 92A.490 Legal
proceeding to determine fair value: Duties of subject corporation; powers of court; rights of dissenter.
1. If a
demand for payment pursuant to NRS 92A.480 remains unsettled, the subject corporation shall commence a proceeding within 60
days after receiving the demand and petition the court to determine the fair value of the shares and accrued interest. If the subject
corporation does not commence the proceeding within the 60-day period, it shall pay each dissenter whose demand remains unsettled
the amount demanded by each dissenter pursuant to NRS 92A.480 plus interest.
2. A subject
corporation shall commence the proceeding in the district court of the county where its principal office is located in this State.
If the principal office of the subject corporation is not located in this State, the right to dissent arose from a merger, conversion
or exchange and the principal office of the surviving entity, resulting entity or the entity whose shares were acquired, whichever
is applicable, is located in this State, it shall commence the proceeding in the county where the principal office of the surviving
entity, resulting entity or the entity whose shares were acquired is located. In all other cases, if the principal office of the
subject corporation is not located in this State, the subject corporation shall commence the proceeding in the district court in
the county in which the corporation’s registered office is located.
3. The
subject corporation shall make all dissenters, whether or not residents of Nevada, whose demands remain unsettled, parties to the
proceeding as in an action against their shares. All parties must be served with a copy of the petition. Nonresidents may be served
by registered or certified mail or by publication as provided by law.
4. The
jurisdiction of the court in which the proceeding is commenced under subsection 2 is plenary and exclusive. The court may appoint
one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value. The appraisers have
the powers described in the order appointing them, or any amendment thereto. The dissenters are entitled to the same discovery
rights as parties in other civil proceedings.
5. Each
dissenter who is made a party to the proceeding is entitled to a judgment:
(a) For the amount,
if any, by which the court finds the fair value of the dissenter’s shares, plus interest, exceeds the amount paid by the
subject corporation; or
(b) For the fair
value, plus accrued interest, of the dissenter’s after-acquired shares for which the subject corporation elected to withhold
payment pursuant to NRS 92A.470.
(Added to NRS by 1995,
2091; A 2007, 2705; 2009, 1727; 2011, 2815; 2013, 1288)
NRS 92A.500 Assessment
of costs and fees in certain legal proceedings.
1. The
court in a proceeding to determine fair value shall determine all of the costs of the proceeding, including the reasonable compensation
and expenses of any appraisers appointed by the court. The court shall assess the costs against the subject corporation, except
that the court may assess costs against all or some of the dissenters, in amounts the court finds equitable, to the extent the
court finds the dissenters acted arbitrarily, vexatiously or not in good faith in demanding payment.
2. The
court may also assess the fees and expenses of the counsel and experts for the respective parties, in amounts the court finds equitable:
(a) Against the
subject corporation and in favor of all dissenters if the court finds the subject corporation did not substantially comply with
the requirements of NRS 92A.300 to 92A.500, inclusive; or
(b) Against either
the subject corporation or a dissenter in favor of any other party, if the court finds that the party against whom the fees and
expenses are assessed acted arbitrarily, vexatiously or not in good faith with respect to the rights provided by NRS 92A.300 to
92A.500, inclusive.
3. If the
court finds that the services of counsel for any dissenter were of substantial benefit to other dissenters similarly situated,
and that the fees for those services should not be assessed against the subject corporation, the court may award to those counsel
reasonable fees to be paid out of the amounts awarded to the dissenters who were benefited.
4. In a
proceeding commenced pursuant to NRS 92A.460, the court may assess the costs against the subject corporation, except that the court
may assess costs against all or some of the dissenters who are parties to the proceeding, in amounts the court finds equitable,
to the extent the court finds that such parties did not act in good faith in instituting the proceeding.
5. To the
extent the subject corporation fails to make a required payment pursuant to NRS 92A.460, 92A.470 or 92A.480, the dissenter
may bring a cause of action directly for the amount owed and, to the extent the dissenter prevails, is entitled to recover all
expenses of the suit.
6. This
section does not preclude any party in a proceeding commenced pursuant to NRS 92A.460 or 92A.490 from applying the provisions
of N.R.C.P. 68.
(Added to NRS by 1995,
2092; A 2009, 1727; 2015, 2566)