Exhibit 3.1
FORM OF SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
EASTER PARENT, INC.
(Pursuant to Sections 242 and
245 of the
General Corporation Law of the
State of Delaware)
Easter Parent, Inc., a corporation organized and existing under
and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “GCL”), hereby
certifies as follows:
1. That the name of
this corporation is Easter Parent, Inc., and that this corporation was originally incorporated pursuant to the GCL on April 3, 2025 under
the name Easter Parent, Inc.
2. An Amended and Restated
Certificate of Incorporation, which amended and restated the corporation’s certificate of incorporation in its entirety (the “Amended
and Restated Certificate”), was filed with the Secretary of State of the State of Delaware on June 16, 2025.
3. That the Board of
Directors of this corporation duly adopted resolutions proposing to amend and restate the certificate of incorporation of this corporation,
declaring said amendment and restatement to be advisable and in the best interests of this corporation and its stockholders.
4. This Second Amended
and Restated Certificate of Incorporation of the corporation, which restates and integrates and also further amends the provisions of
the corporation’s Amended and Restated Certificate and reflects a name change of the Corporation to ContextLogic
Holdings Inc., was duly adopted in accordance with the provisions of Sections 242 and 245 of the GCL and by the written consent of its
stockholders in accordance with Section 228 of the GCL. The certificate of incorporation of the corporation is hereby amended, integrated
and restated to read in its entirety as follows:
ARTICLE I:
NAME
The name of this corporation is ContextLogic Holdings Inc. (the “Corporation”).
ARTICLE II:
AGENT FOR SERVICE OF PROCESS
The address of the registered office of the Corporation in the State of Delaware
is 251 Little Falls Drive, Wilmington, New Castle County, DE 19808, and the name of the registered agent of the Corporation in the State
of Delaware at such address is Corporation Service Company.
ARTICLE III:
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended
(the “General Corporation Law”),.
ARTICLE IV:
AUTHORIZED STOCK
1. Total Authorized.
1.1 The total number of shares of all classes of stock that the Corporation
has authority to issue is 3,100,000,000 shares, consisting of: 3,000,000,000 shares of Common Stock, $0.0001 par value per share (the
“Common Stock”), and 100,000,000 shares of Preferred Stock, $0.0001 par value per share (the “Preferred
Stock”).
1.2 The number of authorized shares of Common Stock may be increased or decreased
(but not below the number of shares thereof then outstanding) by the requisite vote (or written consent if action by written consent of
stockholders is permitted at such time under this Second Amended and Restated Certificate of Incorporation) of the holders of the capital
stock of the Corporation entitled to vote thereon, and no vote of the holders of the Common Stock voting separately as a class shall be
required therefor irrespective of the provisions of Section 242(b)(2) of the General Corporation Law.
2. Preferred Stock.
2.1 The Corporation’s Board of Directors (“Board of Directors”)
is authorized, subject to any limitations prescribed by the law of the State of Delaware, by resolution or resolutions adopted from time
to time, to provide for the issuance of shares of Preferred Stock in one or more series, and, by filing a certificate of designation pursuant
to the applicable law of the State of Delaware (“Certificate of Designation”), to establish from time to time
the number of shares to be included in each such series, to fix the designation, powers (including voting powers), preferences and relative,
participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, of the shares of
each such series and, except where otherwise provided in the applicable Certificate of Designation, to increase (but not above the total
number of authorized shares of the Preferred Stock) or decrease (but not below the number of shares of such series then outstanding) the
number of shares of any such series. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the requisite vote (or written consent if action by written consent of stockholders is permitted
at such time under this Second Amended and Restated Certificate of Incorporation) of the holders of the capital stock of the Corporation
entitled to vote thereon, and no vote of the holders of the Preferred Stock voting separately as a class shall be required therefor, irrespective
of the provisions of Section 242(b)(2) of the General Corporation Law, unless a separate vote of the holders of one or more series of
Preferred Stock is required pursuant to the terms of any Certificate of Designation.
2.2 Except as otherwise expressly provided in any Certificate of Designation
designating any series of Preferred Stock pursuant to the foregoing provisions of this Article IV, (i) any new series of Preferred
Stock may be designated, fixed and determined as provided herein by the Board of Directors without approval of the holders of Common Stock
or the holders of Preferred Stock, or any series thereof, and (ii) any such new series may have powers, preferences and rights, including,
without limitation, voting powers, dividend rights, liquidation rights, redemption rights and conversion rights, senior to, junior to
or pari passu with the rights of the Common Stock, any series of the Preferred Stock, or any future class or series of capital stock of
the Corporation.
3. Rights of Common Stock
3.1 Equal Status. Except as otherwise provided in this Second Amended
and Restated Certificate of Incorporation or required by applicable law, shares of Common Stock shall have the same rights and powers,
rank equally (including as to dividends and distributions, and upon any liquidation, dissolution or winding up of the Corporation), share
ratably and be identical in all respects and as to all matters.
3.2 Voting Rights. Except as otherwise expressly provided by this Second
Amended and Restated Certificate of Incorporation or as provided by applicable law, the holders of shares of Common Stock shall (a) at
all times vote together as a single class on all matters (including the election of directors) submitted to a vote or for the consent
(if action by written consent of stockholders is permitted at such time under this Second Amended and Restated Certificate of Incorporation)
of the stockholders of the Corporation, (b) be entitled to notice of any stockholders’ meeting in accordance with the Bylaws of
the Corporation (as the same may be amended and/or restated from time to time, the “Bylaws”) and (c) be entitled
to vote upon such matters and in such manner as may be provided by applicable law; provided, however, that, except as otherwise required
by applicable law, holders of shares of Common Stock shall not be entitled to vote on any amendment to this Second Amended and Restated
Certificate of Incorporation (including any Certificate of Designation relating to any series of Preferred Stock) that relates solely
to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately
or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Second Amended and Restated
Certificate of Incorporation (including any Certificate of Designation relating to any series of Preferred Stock). Except as otherwise
expressly provided herein or required by applicable law, each holder of Common Stock shall have the right to one (1) vote per share of
Common Stock held of record by such holder.
3.3 Dividends and Distribution Rights. Shares of Common Stock shall
be treated equally, identically and ratably, on a per share basis, with respect to any dividends or distributions as may be declared and
paid from time to time by the Board of Directors out of any assets of the Corporation legally available therefor.
3.4 Subdivisions, Combinations or Reclassifications. Shares of Common
Stock may not be subdivided, combined or reclassified unless proportionately subdivided, combined or reclassified in a manner that maintains
the same proportionate equity ownership between the holders of the outstanding Common Stock on the record date for such subdivision, combination
or reclassification; provided, however, that shares may be subdivided, combined or reclassified in a different or disproportionate manner
if such subdivision, combination or reclassification is approved in advance by the affirmative vote (or written consent if action by written
consent of stockholders is permitted at such time under this Second Amended and Restated Certificate of Incorporation) of the holders
of a majority of the outstanding shares of Common Stock.
3.5 Liquidation, Dissolution or Winding Up. Subject to the preferential
or other rights of any holders of Preferred Stock then outstanding, upon the liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, holders of Common Stock will be entitled to receive ratably all assets of the Corporation available
for distribution to its stockholders unless disparate or different treatment of the shares of such class with respect to distributions
upon any such liquidation, dissolution or winding up is approved in advance by the affirmative vote (or written consent if action by written
consent of stockholders is permitted at such time under this Second Amended and Restated Certificate of Incorporation) of the holders
of a majority of the outstanding shares of Common Stock.
3.6 Merger or Consolidation. In the case of any distribution or payment
in respect of the shares of Common Stock upon the merger or consolidation of the Corporation with or into any other entity, or in the
case of any other transaction having an effect on stockholders substantially similar to that resulting from a merger or consolidation,
such distribution or payment shall be made ratably on a per share basis among the holders of the Common Stock as a single class.
ARTICLE V:
RESERVED
Reserved.
ARTICLE VI:
AMENDMENT OF BYLAWS
The Board of Directors shall have the power to adopt, amend or repeal the Bylaws.
Any adoption, amendment or repeal of the Bylaws by the Board of Directors shall require the approval of a majority of the Whole Board.
For purposes of this Second Amended and Restated Certificate of Incorporation, the term “Whole Board” shall
mean the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships. The stockholders
shall also have power to adopt, amend or repeal the Bylaws; provided, however, that, notwithstanding any other provision of this Second
Amended and Restated Certificate of Incorporation or any provision of law that might otherwise permit a lesser or no vote, but in addition
to any vote of the holders of any class or series of stock of the Corporation required by applicable law or by this Second Amended and
Restated Certificate of Incorporation, the affirmative vote (or written consent if action by written consent of stockholders is permitted
at such time under this Second Amended and Restated Certificate of Incorporation) of the holders of at least two-thirds (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, shall be required for the stockholders to adopt, amend or repeal any provision of the Bylaws; provided,
further, however, that, in the case of any proposed adoption, amendment or repeal of any provisions of the Bylaws that is approved by
the Board of Directors and submitted to the stockholders for adoption thereby, if directors representing two-thirds (2/3) of the Whole
Board have approved such adoption, amendment or repeal of any provisions of the Bylaws, then, in addition to any vote of the holders of
any class or series of stock of the Corporation required by applicable law or by this Second Amended and Restated Certificate of Incorporation,
only the affirmative vote (or written consent if action by written consent of stockholders is permitted at such time under this Second
Amended and Restated Certificate of Incorporation) of the holders of at least a majority of the voting power of all of the then-outstanding
shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class,
shall be required to adopt, amend or repeal such provision of the Bylaws.
ARTICLE VII:
MATTERS RELATING TO THE BOARD OF DIRECTORS
1. Director Powers. Except as otherwise provided by the General Corporation
Law or this Certificate of Incorporation, the business and affairs of the Corporation shall be managed by or under the direction of the
Board of Directors.
2. Number of Directors. Subject to the special rights of the holders
of any series of Preferred Stock to elect additional directors under specified circumstances, the total number of directors constituting
the Whole Board shall be fixed from time to time exclusively by resolution adopted by a majority of the Whole Board.
3. Classified Board. Subject to the special rights of the holders of
one or more series of Preferred Stock to elect directors, immediately following 11:59 p.m. Pacific Time on the first day following ContextLogic
Inc.’s 2021 Annual Meeting of Stockholders falling on or after the date on which the outstanding shares of class B common stock
of ContextLogic Inc. represented less than forty percent (40%) of the total voting power of the then-outstanding shares of ContextLogic
Inc. then entitled to vote generally in the election of directors. (the “Voting Threshold Date”), the directors
shall be divided, with respect to the time for which they severally hold office, into three classes designated as Class I, Class II and
Class III, respectively (the “Classified Board”). The Board of Directors is authorized to assign members of
the Board of Directors already in office immediately prior to the Voting Threshold Date to such classes of the Classified Board. The number
of directors in each class shall be divided as nearly equal as is practicable. The initial term of office of the Class I directors shall
expire at the Corporation’s first annual meeting of stockholders following the Voting Threshold Date, the initial term of office
of the Class II directors shall expire at the Corporation’s second annual meeting of stockholders following the Voting Threshold
Date, and the initial term of office of the Class III directors shall expire at the Corporation’s third annual meeting of stockholders
following the Voting Threshold Date. At each annual meeting of stockholders following the Voting Threshold Date, directors elected to
succeed those directors of the class whose terms then expire shall be elected for a term of office expiring at the third succeeding annual
meeting of stockholders after their election.
4. Term and Removal. Each director shall hold office until the annual
meeting at which such director’s term expires and until such director’s successor is duly elected and qualified, or until
such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the
Corporation given in writing or by any electronic transmission. Prior to the Voting Threshold Date, subject to the special rights of the
holders of any series of Preferred Stock to elect directors, directors may be removed with or without cause by the affirmative vote (or
written consent if action by written consent of stockholders is permitted at such time under this Second Amended and Restated Certificate
of Incorporation) of the holders of a majority of the voting power of the then-outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a single class. From and after the Voting Threshold Date,
subject to the special rights of the holders of any series of Preferred Stock to elect directors, no director may be removed from the
Board of Directors except for cause and only by the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of
the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class. Subject to
the special rights of the holders of any series of Preferred Stock to elect directors, in the event of any increase or decrease in the
authorized number of directors occurring after the Voting Threshold Date, (a) each director then serving as such shall nevertheless continue
as a director of the class of which he or she is a member and (b) the newly created or eliminated directorships resulting from such increase
or decrease shall be apportioned by the Board of Directors among the classes of directors so as to make all classes as nearly equal in
number as is practicable. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent
director.
5. Vacancies and Newly Created Directorships. Subject to the special
rights of the holders of any series of Preferred Stock to elect directors, any vacancy occurring in the Board of Directors for any cause,
and any newly created directorship resulting from any increase in the authorized number of directors, shall be filled only by the affirmative
vote of a majority of the directors then in office, even if less than a quorum, or by a sole remaining director, and shall not be filled
by the stockholders. Any director elected in accordance with the preceding sentence shall hold office for a term expiring at the annual
meeting of stockholders at which the term of office of the class, if any, to which the director has been assigned expires and until such
director’s successor shall have been duly elected and qualified, or until such director’s earlier death, resignation, disqualification
or removal.
6. Additional Directors Elected by the Preferred Stock. During any
period when the holders of any series of Preferred Stock have the right to elect additional directors as provided for or fixed pursuant
to the provisions of Article IV hereof (including any Certificate of Designation) (any such director, a “Preferred
Stock Director”), and upon commencement and for the duration of the period during which such right continues: (i) the then
otherwise total authorized number of directors of the Corporation shall automatically be increased by such number of Preferred Stock Directors
that the holders of any series of Preferred Stock have a right to elect, and the holders of such Preferred Stock shall be entitled to
elect the additional Preferred Stock Directors so provided for or fixed pursuant to said provisions; and (ii) each such Preferred Stock
Director shall serve until his or her successor shall have been duly elected and qualified, or until his or her right to hold such office
terminates pursuant to said provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or
removal. In case any vacancy shall occur among the Preferred Stock Directors, a successor Preferred Stock Director may be elected by the
holders of Preferred Stock pursuant to said provisions. Except as otherwise provided for or fixed pursuant to the provisions of Article
IV hereof (including any Preferred Stock Designation), whenever the holders of any series of Preferred Stock having such right to
elect an additional Preferred Stock Director are divested of such right pursuant to said provisions, the terms of office of such Preferred
Stock Director elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation,
disqualification or removal of such additional Preferred Stock Director, shall forthwith terminate (in which case such person shall cease
to be qualified as a director and shall cease to be a director) and the total authorized number of directors of the Corporation shall
be automatically reduced accordingly.
7. Vote by Ballot. Election of directors need not be by written ballot
unless the Bylaws shall so provide.
8. No Cumulative Voting. No stockholder will be permitted to cumulate
votes at any election of directors.
ARTICLE VIII:
DIRECTOR LIABILITY
1. Limitation of Liability. To the fullest extent permitted by law,
no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director. Without limiting the effect of the preceding sentence, if the General Corporation Law is hereafter amended to authorize
the further elimination or limitation of the liability of a director, then the liability of a director of the Corporation shall be eliminated
or limited to the fullest extent permitted by the General Corporation Law, as so amended.
2. Change in Rights. Neither any amendment nor repeal of this Article
VIII, nor the adoption of any provision of this Second Amended and Restated Certificate of Incorporation inconsistent with this Article
VIII, shall eliminate, reduce or otherwise adversely affect any limitation on the personal liability of a director of the Corporation
or any rights or protections of any officer or director of the Corporation under this Article VIII with respect to acts or omissions
occurring prior to the time of such amendment, repeal or adoption of such an inconsistent provision.
ARTICLE IX:
MATTERS RELATING TO STOCKHOLDERS
1. No Action by Written Consent of Stockholders. Subject to the rights
of any series of Preferred Stock then outstanding, from and after the Voting Threshold Date, (i) no action shall be taken by the stockholders
of the Corporation except at a duly called annual or special meeting of stockholders and (ii) no action shall be taken by the stockholders
of the Corporation by written consent in lieu of a meeting.
2. Special Meeting of Stockholders. Special meetings of the stockholders
of the Corporation may be called only by the Chairperson of the Board, the Chief Executive Officer, the Lead Independent Director (as
defined in the Bylaws) or the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board, and may not
be called by the stockholders or any other person or persons.
3. Advance Notice of Stockholder Nominations and Business Transacted at Special
Meetings. Advance notice of stockholder nominations for the election of directors of the Corporation and of business to be brought
by stockholders before any meeting of stockholders of the Corporation shall be given in the manner provided in the Bylaws. Business transacted
at special meetings of stockholders shall be limited to the purpose or purposes stated in the notice of meeting.
ARTICLE X:
SEVERABILITY
If any provision of this Second Amended and Restated Certificate of Incorporation
shall be held to be invalid, illegal, or unenforceable, then such provision shall nonetheless be enforced to the maximum extent possible
consistent with such holding and the remaining provisions of this Second Amended and Restated Certificate of Incorporation (including
without limitation, all portions of any section of this Second Amended and Restated Certificate of Incorporation containing any such provision
held to be invalid, illegal, or unenforceable, which is not invalid, illegal, or unenforceable) shall remain in full force and effect.
ARTICLE XI:
AMENDMENT OF CERTIFICATE OF INCORPORATION
1. General. The Corporation reserves the right to amend or repeal any
provision contained in this Second Amended and Restated Certificate of Incorporation in the manner prescribed by the laws of the State
of Delaware and all rights conferred upon stockholders are granted subject to this reservation; provided, however, that, notwithstanding
any provision of this Second Amended and Restated Certificate of Incorporation (including any Certificate of Designation) or any provision
of law that might otherwise permit a lesser vote or no vote (other than Sections 1.2 and 2.1 of Article IV hereof),
but in addition to any vote of the holders of any class or series of the stock of the Corporation required by applicable law or by this
Second Amended and Restated Certificate of Incorporation (including any Certificate of Designation), and subject to Sections 1.2
and 2.1 of Article IV, the affirmative vote (or written consent if action by written consent of stockholders is permitted
at such time under this Second Amended and Restated Certificate of Incorporation) of the holders of at least two-thirds (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, shall be required to amend or repeal, or adopt any provision inconsistent with, this Section 1
of this Article XI, Sections 1.2 and 2 of Article IV, or Article VI, Article VII, Article
VIII, Article IX, Article X or Article XII (the “Specified Provisions”); provided,
further, that if directors representing two-thirds (2/3) of the Whole Board have approved such amendment or repeal of, or any provision
inconsistent with, the Specified Provisions, then only the affirmative vote (or written consent if action by written consent of stockholders
is permitted at such time under this Second Amended and Restated Certificate of Incorporation) of the holders of at least a majority 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 (in addition to any other vote of the holders of any class or series of stock of the Corporation
required by applicable law or by this Second Amended and Restated Certificate of Incorporation), shall be required to approve such amendment
or repeal of, or the adoption of such provision inconsistent with, the Specified Provisions.
2. Changes to or Inconsistent with Section 3 of Article IV. Notwithstanding
any other provision of this Second Amended and Restated Certificate of Incorporation (including any Certificate of Designation) or any
provision of law that might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series
of the stock of the Corporation required by law or by this Second Amended and Restated Certificate of Incorporation (including any Certificate
of Designation), the affirmative vote (or written consent if action by written consent of stockholders is permitted at such time under
this Second Amended and Restated Certificate of Incorporation) of the holders of Common Stock representing at least seventy-five percent
(75%) of the voting power of the then-outstanding shares of Common Stock shall be required to amend or repeal, or to adopt any provision
inconsistent with, Section 3 of Article IV or this Section 2 of this Article XI.
ARTICLE XII:
CHOICE OF FORUM
Unless the Corporation consents in writing to the selection of an alternative forum,
the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, the federal district court for
the District of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for: (a) any derivative action
or proceeding brought on behalf of the Corporation; (b) any action asserting a claim of breach of a fiduciary duty owed by any current
or former director, officer, stockholder, employee or agent of the Corporation to the Corporation or the Corporation’s stockholders;
(c) any action asserting a claim against the Corporation arising pursuant to any provision of the General Corporation Law, this Second
Amended and Restated Certificate of Incorporation or the Bylaws or as to which the General Corporation Law confers jurisdiction on the
Court of Chancery of the State of Delaware; (d) any action to interpret, apply, enforce or determine the validity of this Second Amended
and Restated Certificate of Incorporation or the Bylaws; or (e) any action asserting a claim against the Corporation governed by the internal
affairs doctrine. This Article XII shall not apply to suits brought to enforce a duty or liability created by the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) or any other claim for which the federal courts have exclusive
jurisdiction.
To the fullest extent permitted by law, unless the Corporation consents in writing
to the selection of an alternative forum, the federal district courts of the United States of America shall be the exclusive forum for
the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended.
Any person or entity purchasing or otherwise acquiring or holding any interest in
shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article
XII.
ARTICLE XIII
CERTAIN STOCK REPURCHASES
In connection with repurchases by the Corporation of shares of Common Stock from
employees, officers, directors, advisors, consultants or other persons performing services for this corporation or any subsidiary pursuant
to agreements under which the Corporation has the option to repurchase such shares at cost upon the occurrence of certain events, such
as the termination of employment, Section 500 of the California Corporations Code shall not apply in all or in part with respect to such
repurchases. In the case of any such repurchases, distributions by the Corporation may be made without regard to the “preferential
dividends arrears amount” or any “preferential rights amount,” as such terms are defined in Section 500(b) of the California
Corporations Code.
ARTICLE XIV
TRANSFER RESTRICTIONS
1. Definitions. As used in this Article XIV, the following capitalized
terms have the following meanings when used herein with initial capital letters (and any references to any portions of the Treasury Regulations
hereunder shall include any successor provisions):
(a) “4.9-percent Transaction”
means any Transfer described in clause (i) or (ii) of Section 2 of this Article XIV.
(b) “4.9-percent Stockholder”
means a Person or group of Persons that is a “5-percent stockholder” of the Corporation pursuant to Treasury Regulation §
1.382-2T(g), as applied by replacing “5-percent” with “4.9-percent,” where applicable.
(c) “Agent” has the meaning
set forth in Section 5 of this Article XIV.
(d) A Person shall be deemed the “Beneficial
Owner” of, and shall be deemed to “Beneficially Own” and have “Beneficial Ownership”
of any securities (that are as such, “Beneficially Owned”) that such Person actually owns, directly or indirectly,
including any ownership by virtue of application of constructive ownership rules, with such direct, indirect and constructive ownership
determined under the provisions of Section 382 of the Code and the Treasury Regulations thereunder, including, for the avoidance of doubt,
any ownership whereby a Person owns Common Stock pursuant to a “coordinated acquisition” treated as a single “entity”
as defined in Section 1.382-3(a)(1) of the Treasury Regulations, or such Shares are otherwise aggregated with Common Stock owned by such
Person pursuant to the provisions of Section 382 of the Code and the Treasury Regulations thereunder. Notwithstanding the foregoing, a
Person shall be deemed to Beneficially Own any Common Stock issuable or issued upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, that are in existence on the date hereof.
(e) “Code” means the United
States Internal Revenue Code of 1986, as amended from time to time.
(f) “Effective Date” means
the date on which this Article XIV became effective, upon filing of this Second Amended and Restated Certificate of Incorporation
of the Corporation with the Secretary of State.
(g) “Excess Securities” has
the meaning set forth in Section 4 of this Article XIV.
(h) “Expiration Date” means
the earliest of (i) the repeal of Section 382 of the Code or any successor statute if the Board determines that this Article XIV is
no longer necessary or desirable for the preservation of Tax Benefits; (ii) such date as the Board shall fix in its discretion; (iii)
the beginning of a taxable year of the Corporation to which the Board determines that no Tax Benefits may be carried forward; or (iv)
the date that is the third anniversary of the filing and effectiveness of this Certificate of Incorporation.
(i) “Percentage Share Ownership”
means the percentage interest Beneficially Owned of any Person or group (as the context may require) for purposes of Section 382 of the
Code as determined in accordance with Treasury Regulation § 1.382-2T(g), (h), (j) and (k) and Treasury Regulation § 1.382-4,
or any successor provisions. Notwithstanding the foregoing, any Common Stock issuable or issued upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise, that are in existence on the date hereof shall be included in the Percentage Share
Ownership.
(j) “Person” means any individual,
partnership, joint venture, limited liability company, firm, corporation, unincorporated association or organization, trust or other entity
or any group of such “Persons” having a formal or informal understanding among themselves to make a “coordinated acquisition”
of shares within the meaning of Treasury Regulation § 1.382-3(a)(1) or who are otherwise treated as an “entity” within
the meaning of Treasury Regulation § 1.382-3(a)(1), and shall include any successor (by merger or otherwise) of any such entity or
group.
(k) “Prohibited Distributions”
means any and all dividends or other distributions paid by the Corporation with respect to any Excess Securities received by a Purported
Transferee.
(l) “Prohibited Transfer”
means any Transfer or purported Transfer of Shares to the extent that such Transfer is prohibited and/or void under this Article XIV.
(m) “Purported Transferee”
has the meaning set forth in Section 4 of this Article XIV.
(n) “Remedial Holder” has
the meaning set forth in Section 7 of this Article XIV.
(o) “Shares” means (i) the
Common Stock, and (ii) any interest that would be treated as “stock” of the Corporation pursuant to Treasury Regulation §
1.382-2T(f)(18).
(p) “Subsidiary” means, with
reference to any Person, any other Person of which (i) a majority of the voting power of the voting securities or equity interests is
Beneficially Owned, directly or indirectly, by such first-mentioned Person or otherwise controlled by such first-mentioned Person or (ii)
an amount of voting securities or equity interests sufficient to elect at least a majority of the directors (or other Persons similarly
responsible for the direction of the business and affairs of such other Person) of such other Person is Beneficially Owned, directly or
indirectly, by such first-mentioned Person, or otherwise controlled by such first-mentioned Person.
(q) “Tax Benefits” shall
mean the net operating loss carryovers, capital loss carryovers, general business credit carryovers, carryovers of disallowed business
interest described in Section 163(j)(2) of the Code, alternative minimum tax credit carryovers and foreign tax credit carryovers, as well
as any loss or deduction attributable to a “net unrealized built-in loss” within the meaning of Section 382 of the Code, of
the Company and any of its Subsidiaries.
(r) “Transfer” means, any
direct or indirect sale, transfer, assignment, conveyance, pledge or other disposition, event or occurrence or other action taken by a
Person, other than the Corporation, that alters the Percentage Share Ownership of any Person or group. A Transfer also shall include the
creation or grant of an option (including an option within the meaning of Treasury Regulation § 1.382-4(d)), except that a Transfer
shall not include the creation or grant of an option by the Corporation, nor shall a Transfer include the issuance of Shares by the Corporation.
(s) “Transferee” means any
Person to whom Shares are Transferred.
(t) “Treasury Regulations”
means the regulations, including temporary regulations or any successor regulations, promulgated under the Code, as amended from time
to time.
2. Transfer and Ownership Restrictions. In order to preserve the Tax
Benefits, from and after the Effective Date of this Article XIV any attempted Transfer of Shares prior to the Expiration Date and
any attempted Transfer of Shares pursuant to an agreement entered into prior to the Expiration Date shall be prohibited and void ab
initio to the extent that, as a result of such Transfer (or any series of Transfers of which such Transfer is a part), either (i)
any Person or Persons would become a 4.9-percent Stockholder or (ii) the Percentage Share Ownership in the Corporation of any 4.9-percent
Stockholder would be increased by more than one-half of one percentage point. The prior sentence is not intended to prevent Common Stock
from being DTC-eligible and shall not preclude the settlement of any transaction in Common Stock entered into through the facilities of
a national securities exchange; provided, however, that the Common Stock and parties involved in such transaction shall
remain subject to the provisions of this Article XIV in respect of such transaction.
3. Exceptions.
The restrictions set forth in Section 2 of this Article
XIV shall not apply to an attempted Transfer that is a 4.9-percent Transaction if the transferor or the Transferee obtains the written
approval of the Board or a duly authorized committee thereof. As a condition to granting its approval pursuant to this Section 3
of this Article XIV, the Board or a duly authorized committee thereof may, in its discretion, require (at the expense of the transferor
and/or Transferee) an opinion of counsel to be delivered to the Board or a duly authorized committee thereof that the Transfer shall not
result in a limitation on the use of the Tax Benefits as a result of the application of Section 382 of the Code; provided
that the Board or a duly authorized committee thereof may grant such approval notwithstanding the effect of such approval on the Tax Benefits
if it determines that the approval is in the best interests of the Corporation. The Board or a duly authorized committee thereof may grant
its approval in whole or in part with respect to such Transfer and may impose any conditions that it deems reasonable and appropriate
in connection with such approval, including, without limitation, restrictions on the ability of any Transferee to Transfer Shares acquired
through a Transfer. Approvals of the Board or a duly authorized committee thereof hereunder may be given prospectively or retroactively.
The Board or a duly authorized committee thereof, to the fullest extent permitted by law, may exercise the authority granted by this Article
XIV through duly authorized officers or agents of the Corporation. Nothing in this Section 3 of this Article XIV shall
be construed to limit or restrict the Board or a duly authorized committee thereof in the exercise of its fiduciary duties under applicable
law.
4. Excess Securities.
(a) No officer, director, employee or agent of the
Corporation shall record any Prohibited Transfer, and the purported transferee of such a Prohibited Transfer (the “Purported
Transferee”) shall not be recognized as a stockholder of the Corporation for any purpose whatsoever in respect of any Shares
that are the subject of the Prohibited Transfer (the “Excess Securities”). The Purported Transferee shall not
be entitled, with respect to such Excess Securities, to any rights of a stockholder of the Corporation in respect of such Excess Shares,
including, without limitation, the right to vote such Excess Securities or to receive dividends or distributions (whether liquidating
or otherwise) thereon, and the Excess Securities shall be deemed to remain with the transferor unless and until the Excess Securities
are transferred to the Agent pursuant to Section 5 of this Article XIV or until an approval is obtained under Section
3 of this Article XIV Section. After the Excess Securities have been acquired in a Transfer that is not a Prohibited Transfer,
the Shares, which is the subject of the Prohibited Transfer, shall cease to be Excess Securities. For this purpose, any Transfer of Excess
Securities not in accordance with the provisions of this Section 4 or Section 5 of this Article XIV shall also be
a Prohibited Transfer.
(b) The Corporation may require as a condition to the
registration of the Transfer of any Shares or the payment of any distribution on any Shares that the proposed Transferee or payee furnish
to the Corporation all information reasonably requested by the Corporation with respect to its direct or indirect ownership interests
in such Shares. The Corporation may make such arrangements or issue such instructions to its stock transfer agent as may be determined
by the Board or a duly authorized committee thereof to be necessary or advisable to implement this Article XIV, including, without
limitation, authorizing such transfer agent to require an affidavit from a Purported Transferee regarding such Person’s actual and
constructive ownership of Shares and other evidence that a Transfer will not be prohibited by this Article XIV as a condition to
registering any transfer.
5. Transfer to Agent. If the Board or a duly authorized committee thereof
determines that a Transfer of Shares constitutes a Prohibited Transfer, then, upon written demand by the Corporation sent within thirty
days of the date on which the Board or a duly authorized committee thereof determines that the attempted Transfer would result in Excess
Securities, the Purported Transferee shall transfer or cause to be transferred any certificate or other evidence of ownership of the Excess
Securities within the Purported Transferee’s possession or control, together with any Prohibited Distributions, to an agent designated
by the Board or a duly authorized committee thereof (the “Agent”). The Agent shall thereupon sell to a buyer
or buyers, which may include the Corporation, the Excess Securities transferred to it in one or more arm’s-length transactions (on
the public securities market on which such Excess Securities are traded, if possible, or otherwise privately); provided, however,
that any such sale must not constitute a Prohibited Transfer and provided, further, that the Agent shall effect such sale or sales in
an orderly fashion and shall not be required to effect any such sale within any specific time frame if, in the Agent’s discretion,
such sale or sales would disrupt the market for the Shares or otherwise would adversely affect the value of the Shares. Any Excess Securities
resold by a Purported Transferee before the time at which the Corporation has delivered a demand to surrender such Excess Securities to
the Agent shall be deemed to have been sold on behalf of and for the benefit of the Agent, and the Purported Transferee shall be required
to transfer to the Agent any Prohibited Distributions and proceeds of such sale, except to the extent that the Corporation grants written
permission to the Purported Transferee to retain a portion of such sale proceeds not exceeding the amount that the Purported Transferee
would have received from the Agent pursuant to Section 6 of this Article XIV if the Agent rather than the Purported Transferee
had resold the Excess Securities.
6. Application of Proceeds and Prohibited Distributions. The Agent
shall apply any proceeds of a sale by it of Excess Securities, together with any Prohibited Distributions, as follows: (i) first, such
amounts shall be paid to the Agent to the extent necessary to cover its costs and expenses incurred in connection with its duties hereunder;
(ii) second, any remaining amounts shall be paid to the Purported Transferee, up to the amount paid by the Purported Transferee for the
Excess Securities (or the fair market value at the time of the Transfer, in the event the purported Transfer of the Excess Securities
was, in whole or in part, a gift, inheritance or similar Transfer) which amount (or fair market value) shall be determined at the discretion
of the Board or a duly authorized committee thereof ; and (iii) third, any remaining amounts shall be paid to one or more organizations
selected by the Board or a duly authorized committee thereof which is described under Section 501(c)(3) of the Code (or any comparable
successor provision) and contributions to which are eligible for deduction under each of Sections 170(b)(1)(A) and 2055 of the Code. The
Purported Transferee’s sole right with respect to such Shares shall be limited to the amount payable to the Purported Transferee
pursuant to this Section 6 of Article XIV. In no event shall the proceeds of any sale of Excess Securities pursuant to this
Section 6 of Article XIV inure to the benefit of the Corporation or the Agent, except to the extent used to cover costs
and expenses incurred by Agent in performing its duties hereunder.
7. Modification of Remedies for Certain Indirect Transfers. In the
event of any Transfer which does not involve a transfer of Shares within the meaning of Delaware law but which would cause a 4.9-percent
Stockholder to violate a restriction on Transfers provided for in this Article XIV, the application of Sections 5 and 6
of this Article XIV shall be modified as described in this Section 7 of this Article XIV. A 4.9-percent Stockholder
and/or any Person whose ownership of Common Stock is attributed to such 4.9-percent Stockholder (such 4.9-percent Stockholder or other
Person, a “Remedial Holder”) shall be deemed to have disposed of and shall be required to dispose of sufficient
Shares (which Shares shall be disposed of in the inverse order in which they were acquired) to cause such 4.9-percent Stockholder, following
such disposition, not to be in violation of this Article XIV. Such disposition shall be deemed to occur simultaneously with the
Transfer giving rise to the application of this provision, and such number of Shares that are deemed to be disposed of shall be considered
Excess Securities and shall be disposed of through the Agent as provided in Sections 5 and 6 of this Article XIV,
except that the maximum aggregate amount payable to a Remedial Holder in connection with such sale shall be the fair market value of such
Excess Securities at the time of the purported Transfer. A Remedial Holder shall not be entitled, with respect to such Excess Securities,
to any rights of stockholders of the Corporation, including, without limitation, the right to vote such Excess Securities and to receive
dividends or distributions, whether liquidating or otherwise, in respect thereof, if any, following the time of the purported Transfer.
All expenses incurred by the Agent in disposing of such Excess Securities shall be paid out of any amounts due such 4.9-percent Stockholder
or such other Person. The purpose of this Section 7 of this Article XIV is to extend the restrictions in Sections 2
and 5 of this Article XIV to situations in which there is a 4.9-percent Transaction without a direct Transfer of Shares,
and this Section 7 of Article XIV, along with the other provisions of this Article XIV, shall be interpreted to produce
the same results, with differences as the context requires, as a direct Transfer of Shares.
8. Legal Proceedings; Prompt Enforcement. If the Purported Transferee
fails to surrender the Excess Securities or the proceeds of a sale thereof to the Agent within thirty days from the date on which the
Corporation makes a written demand pursuant to Section 5 of this Article XIV (whether or not made within the time specified
in Section 5 of this Article XIV), then the Corporation may take such actions as it deems appropriate to enforce the provisions
hereof, including the institution of legal proceedings to compel the surrender. Nothing in this Section 8 of Article XIV
shall (i) be deemed inconsistent with any Transfer of the Excess Securities provided in this Article XIV being void ab initio,
(ii) preclude the Corporation in its discretion from immediately bringing legal proceedings without a prior demand or (iii) cause any
failure of the Corporation to act within the time periods set forth in Section 5 of this Article XIV to constitute a waiver
or loss of any right of the Corporation under this Article XIV. The Board or a duly authorized committee thereof may authorize
such additional actions as it deems advisable to give effect to the provisions of this Article XIV.
9. Liability. The Corporation reserves the right to take any and all
actions and seek all remedies against any stockholder who knowingly violates the provisions of this Article XIV and any Persons
controlling, controlled by or under common control with such stockholder, which may include seeking an award of damages suffered by the
Corporation or its other stockholders as a result of such violation, including but not limited to damages resulting from a reduction in,
or elimination of, the Corporation’s ability to utilize its Tax Benefits, and attorneys’ and auditors’ fees incurred
in connection with such violation.
10. Obligation to Provide Information. As a condition to the registration
of the Transfer of any Shares, any Person who is a beneficial, legal or record holder of Shares, and any proposed Transferee and any Person
controlling, controlled by or under common control with the proposed Transferee, shall provide such information as the Corporation may
request from time to time in order to determine compliance with this Article XIV or the status of the Tax Benefits of the Corporation.
11. Legends. The Board or a duly authorized committee thereof may require
that any certificates issued by the Corporation evidencing ownership of Shares that are subject to the restrictions on transfer and ownership
contained in this Article XIV bear the following legend:
“THE CERTIFICATE OF INCORPORATION, AS AMENDED (THE “CERTIFICATE
OF INCORPORATION”), OF THE CORPORATION CONTAINS RESTRICTIONS PROHIBITING THE TRANSFER (AS DEFINED IN THE CERTIFICATE OF INCORPORATION)
OF SHARES OF COMMON STOCK OF THE CORPORATION (INCLUDING THE CREATION OR GRANT OF CERTAIN OPTIONS, RIGHTS AND WARRANTS) WITHOUT THE PRIOR
AUTHORIZATION OF THE BOARD OF DIRECTORS OF THE CORPORATION (THE “BOARD”) OR A COMMITTEE THEREOF IF SUCH TRANSFER AFFECTS THE
PERCENTAGE OF SHARES OF COMMON STOCK OF THE CORPORATION (WITHIN THE MEANING OF SECTION 382 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
(THE “CODE”) AND THE TREASURY REGULATIONS PROMULGATED THEREUNDER) THAT IS TREATED AS OWNED BY A 4.9-PERCENT STOCKHOLDER (AS
DEFINED IN THE CERTIFICATE OF INCORPORATION). IF THE TRANSFER RESTRICTIONS ARE VIOLATED, THEN THE TRANSFER WILL BE VOID AB INITIO AND
THE PURPORTED TRANSFEREE OF THE SHARES OF COMMON STOCK WILL BE REQUIRED TO TRANSFER EXCESS SECURITIES (AS DEFINED IN THE CERTIFICATE OF
INCORPORATION) TO THE CORPORATION’S AGENT. IN THE EVENT OF A TRANSFER WHICH DOES NOT INVOLVE SECURITIES OF THE CORPORATION WITHIN
THE MEANING OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE (“SECURITIES”) BUT WHICH WOULD VIOLATE THE TRANSFER RESTRICTIONS,
THE PURPORTED TRANSFEREE (OR THE RECORD OWNER) OF THE SECURITIES THAT VIOLATE THE TRANSFER RESTRICTIONS WILL BE REQUIRED TO TRANSFER SUFFICIENT
SECURITIES PURSUANT TO THE TERMS PROVIDED FOR IN THE CERTIFICATE OF INCORPORATION TO CAUSE THE 4.9-PERCENT STOCKHOLDER TO NO LONGER BE
IN VIOLATION OF THE TRANSFER RESTRICTIONS. THE CORPORATION WILL FURNISH WITHOUT CHARGE TO THE HOLDER OF RECORD OF THIS CERTIFICATE A COPY
OF THE CERTIFICATE OF INCORPORATION CONTAINING THE ABOVE-REFERENCED TRANSFER RESTRICTIONS UPON WRITTEN REQUEST TO THE CORPORATION AT ITS
PRINCIPAL PLACE OF BUSINESS.”
The Board or a duly authorized committee thereof may also require that any certificates
issued by the Corporation evidencing ownership of Shares that are subject to conditions imposed by the Board or a duly authorized committee
thereof under Section 3 of this Article XIV also bear a conspicuous legend referencing the applicable restrictions.
12. Authority of the Board.
(a) The Board or a duly authorized committee thereof
shall have the power to determine all matters necessary for assessing compliance with this Article XIV, including, without limitation,
(1) the identification of 4.9-percent Stockholders, (2) whether a Transfer is a 4.9-percent Transaction or a Prohibited Transfer, (3)
the Percentage Share Ownership in the Corporation of any 4.9-percent Stockholder, (4) whether an instrument constitutes a Share or Shares,
(5) the amount (or fair market value) due to a Purported Transferee pursuant to Section 6 of this Article XIV, (6) whether
the benefit to be derived from the Tax Benefits is material; (7) whether enforcement of the provisions of this Article XIV
should be deferred or suspended for one or more periods upon a determination by the Board or a duly authorized committee thereof that
the benefits from the Tax Benefits are not material or reasonably expected to be material; and (8) any other matters which the Board
or a duly authorized committee thereof determines to be relevant. In addition, the Board may, to the extent permitted by law, from time
to time establish, modify, amend or rescind by-laws, regulations and procedures of the Corporation not inconsistent with the provisions
of this Article XIV for purposes of determining whether any Transfer of Shares would jeopardize or endanger the Corporation’s
ability to preserve and use the Tax Benefits and for the orderly application, administration and implementation of this Article XIV.
(b) Nothing contained in this Article XIV shall
limit the authority of the Board or a duly authorized committee thereof to take such other action to the extent permitted by law as it
deems necessary or advisable to protect the Corporation and its Stockholders in preserving the Tax Benefits. Notwithstanding anything
to the contrary herein and to the fullest extent permitted by applicable law, unless the Board or a duly authorized committee thereof
determines otherwise, in the event of any change to Section 382 of the Code and the applicable Treasury Regulations, any of the ownership
interest percentages in the Corporation or the Persons or groups covered by this Article XIV shall automatically be deemed to be
modified to the extent necessary to reflect such changes as is necessary to prevent an ownership change for purposes of Section 382 of
the Code.
(c) In the case of any ambiguity in the application
of any of the provisions of this Article XIV, including any definition used herein, the Board or a duly authorized committee thereof
shall have the power to determine the application of such provisions with respect to any situation based on its reasonable belief, understanding
or knowledge of the circumstances. In the event this Article XIV requires an action by the Board but fails to provide specific
guidance with respect to such action, the Board or a duly authorized committee thereof shall have the power to determine the action to
be taken so long as such action is not contrary to the provisions of this Article XIV. The Board or a duly authorized committee
thereof may , to the fullest extent permitted by law, delegate the authority granted by this Article XIV to duly authorized officers
or agents of the Corporation. Nothing in this Article XIV shall be construed to limit or restrict the Board or a duly authorized
committee thereof in its exercise of its fiduciary duties under applicable law.
13. Reliance. To the fullest extent permitted by law, the Corporation
and the members of the Board shall be fully protected in relying in good faith upon the information, opinions, reports or statements of
the Chief Executive Officer, President, Chief Financial Officer, Secretary, Treasurer, Chief Legal Officer and Secretary of the Corporation
and the Corporation’s legal counsel, independent auditors, transfer agent, investment bankers or other employees and agents in making
the determinations and findings contemplated by this Article XIV. For purposes of determining the existence and identity of, and
the amount of any Shares owned by, any Stockholder, the Corporation (including members of the Board and officers) is entitled to rely
on the existence and absence of filings of Schedule 13D or 13G under the Exchange Act (or similar filings), as of any date, subject to
its actual knowledge of the ownership of Shares.
14. Benefits of this Article XIV. Nothing in this Article XIV
shall be construed to give to any Person other than the Corporation (including members of the Board or officers of the Corporation acting
on behalf of the Corporation or taking action required or permitted to be taken by them under this Article XIV) or the Agent any
legal or equitable right, remedy or claim under this Article XIV.
15. Severability. The purpose of this Article XIV is to facilitate
the Corporation’s ability to maintain or preserve its Tax Benefits. If any provision of this Article XIV or the application
of any such provision to any Person or under any circumstance shall be held invalid, illegal or unenforceable in any respect by a court
of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of this Article XIV.
16. Waiver. With regard to any power, remedy or right provided herein
or otherwise available to the Corporation or the Agent under this Article XIV, (i) no waiver will be effective unless expressly
contained in a writing signed by the waiving party and (ii) no alteration, modification or impairment will be implied by reason of any
previous waiver, extension of time, delay or omission in exercise or other indulgence.
17. Interpretation. Nothing in this Article XIV
shall be construed to limit or restrict the Board or a duly authorized committee thereof in the exercise of its fiduciary duties under
applicable law. All provisions of this Article XIV shall be construed to operate in a manner that is permitted by applicable law.
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