Attached files
Exhibit 3.4
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HF ENTERPRISES INC.
HF
Enterprises Inc. (the “Corporation”), a
corporation organized and existing under the laws of the State of
Delaware, does hereby certify that:
A. The
Corporation’s original Certificate of Incorporation was filed
with the Secretary of State of Delaware on March 7,
2018.
B. The
Corporation’s Amended and Restated Certificate of
Incorporation was filed with the Secretary of State of Delaware on
September 21, 2018.
C. The
Corporation’s Second Amended and Restated Certificate of
Incorporation was filed with the Secretary of State of Delaware on
December 20, 2019.
D. This Third Amended
and Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the Delaware General
Corporation Law, as amended (the “DGCL”), and has been duly
approved by the written consent of the stockholders of the
Corporation in accordance with Section 228 of the
DGCL.
E. The Certificate of
Incorporation of the Corporation is hereby amended and restated in
its entirety to read as follows:
ARTICLE I
The
name of the corporation is HF Enterprises Inc. (the
“Corporation”).
ARTICLE II
The
registered office of the Corporation in the State of Delaware is to
be located at 16192 Coastal Highway, Lewes, Delaware 19958, County
of Sussex. The registered agent at such address in charge thereof
shall be Harvard Business Services, Inc.
ARTICLE III
The
purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the Delaware
General Corporation Law, as amended (the “DGCL”).
ARTICLE IV
4.1 Authorized
Capital Stock. The aggregate number of shares of capital
stock that the Corporation is authorized to issue is Twenty-Five
Million (25,000,000), of which Twenty Million (20,000,000) shares
are common stock having a par value of $0.001 per share (the
“Common
Stock”), and Five Million (5,000,000) shares are
preferred stock having a par value of $0.001 per share (the
“Preferred
Stock”).
4.2 Increase
or Decrease in Authorized Capital Stock. The number of
authorized shares of Preferred Stock or Common Stock may be
increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a
majority in voting power of the stock of the Corporation entitled
to vote generally in the election of directors, irrespective of the
provisions of Section 242(b)(2) of the DGCL (or any successor
provision thereto), voting together as a single class, without a
separate vote of the holders of the class or classes the number of
authorized shares of which are being increased or decreased, unless
a vote by any holders of one or more series of Preferred Stock is
required by the express terms of any series of Preferred Stock as
provided for or fixed pursuant to the provisions of Section 4.3 of
this Article IV.
4.3 Preferred
Stock.
(A) The
Board of Directors of the Corporation (the “Board”) is hereby
authorized, subject to any limitations prescribed by law, to
provide for the issuance of shares of Preferred Stock from time to
time in one or more series pursuant to a resolution or resolutions
providing for such issuance duly adopted by the Board. The Board is
further authorized, subject to limitations prescribed by law, to
file a certificate of designation pursuant to the applicable law of
the State of Delaware (any such certificate, a “Preferred Stock
Designation”), to establish from time to time the
number of shares to be included in each such series, and to fix the
designation, powers, preferences, and rights of the shares of each
such series and the qualifications, limitations, and restrictions
thereof. The authority of the Board with respect to each series
shall include, but shall not be limited to and shall not require
(unless otherwise required by applicable law), determination of the
following:
(i) The
designation of the series, which may be by distinguishing number,
letter, or title;
(ii) The
number of shares of the series, which number the Board may
thereafter (except where otherwise provided in the applicable
Preferred Stock Designation) increase or decrease (but not below
the number of shares thereof then outstanding);
(iii) The
amounts payable on, and the preferences, if any, of, shares of the
series in respect of dividends, and whether such dividends, if any,
shall be cumulative or noncumulative;
(iv) The
dates on which dividends, if any, shall be payable;
(v) The
redemption rights and price or prices, if any, for shares of the
series;
(vi) The
terms and amount of any sinking fund provided for the purchase or
redemption of shares of the series;
(vii) The
amounts payable on, and the preferences, if any, of, shares of the
series in the event of any voluntary or involuntary liquidation,
dissolution, or winding up of the affairs of the
Corporation;
(viii) Whether
the shares of the series shall be convertible into or exchangeable
for shares of any other class or series, or any other security, of
the Corporation or any other corporation, and, if so, the
specification of such other class or series or such other security,
the conversion or exchange price or prices or rate or rates, any
adjustments thereto, the date or dates at which such shares shall
be convertible or exchangeable, and all other terms and conditions
upon which such conversion or exchange may be made;
(ix) Restrictions
on the issuance of shares of the same series or of any other class
or series; and
(x) The
voting rights, if any, of the holders of shares of the
series.
(B) Except
as may otherwise be provided in this Certificate of Incorporation,
in a Preferred Stock Designation, or by applicable law, only shares
of Common Stock shall be voted in elections of directors and for
all other purposes and shares of Preferred Stock shall not entitle
the holder thereof to vote at or receive notice of any meeting of
the stockholders of the Corporation.
4.4 Common
Stock.
(A) Common
Stock shall be subject to the express terms of any series of
Preferred Stock. Each holder of Common Stock shall be entitled to
one vote for each such share of Common Stock so held upon each
matter properly submitted to a vote of the
stockholders.
(B) Subject
to the rights of the holders of Preferred Stock, the holders of
shares of Common Stock shall be entitled to receive such dividends
and other distributions (payable in cash, property or capital stock
of the Corporation) when, as and if declared thereon by the Board
from time to time out of any assets or funds of the Corporation
legally available therefor and shall share equally on a per share
basis in such dividends and distributions.
(C) In
the event of any voluntary or involuntary liquidation, dissolution
or winding-up of the Corporation, after payment or provision for
payment of the debts and other liabilities of the Corporation, and
subject to the rights of the holders of Preferred Stock in respect
thereof, the holders of shares of Common Stock shall be entitled to
such amounts as provided under applicable law.
4.5 No
Preemptive Rights. No share of Common Stock or Preferred
Stock shall entitle any holder thereof any preemptive right to
subscribe for any shares of any class or series of stock of the
Corporation whether now or hereafter authorized.
ARTICLE V
Provisions for the
management of the business and for the conduct of the affairs of
the Corporation and provisions creating, defining, limiting, and
regulating the powers of the Corporation, the Board, and the
stockholders are as follows:
5.1 General
Powers. The business and affairs of the Corporation shall be
managed by or under the direction of the Board. In addition to the
powers and authority herein or by statute expressly conferred upon
it, the Board is hereby expressly empowered to exercise all such
powers and to do all such acts and things as may be exercised or
done by the Corporation; subject, nevertheless, to the provisions
of the statutes of the State of Delaware and of this Certificate of
Incorporation as they may be amended, altered, or changed from time
to time, and to any bylaws from time to time made by the Board or
stockholders; provided, however, that no bylaw so made
shall invalidate any prior act of the Board that would have been
valid if such bylaw had not been made.
5.2 Number
of Directors; Election; Term.
(A) Subject
to the rights of the holders of any series of Preferred Stock to
elect additional directors under specified circumstances, the total
number of authorized directors constituting the Board shall be
fixed solely by resolution of the Board.
(B) Subject
to the rights of holders of any series of Preferred Stock with
respect to the election of directors, each director shall serve
until his or her successor is duly elected and qualified or until
his or her earlier death, resignation or removal.
(C) Election
of directors of the Corporation need not be by written ballot
unless the bylaws so provide.
(D) No
stockholder will be permitted to cumulate votes at any election of
directors.
5.3 Vacancies
and Newly Created Directorships. Subject to the rights of
holders of any series of Preferred Stock, and except as otherwise
provided in the DGCL, vacancies occurring on the Board for any
reason and newly created directorships resulting from any increase
in the authorized number of directors shall be filled only by vote
of a majority of the remaining members of the Board, although less
than a quorum, or by a sole remaining director, at any meeting of
the Board. A person so elected by the Board to fill a vacancy or
newly created directorship shall hold office until his or her
successor shall be duly elected and qualified, or until such
Director’s earlier death, resignation, or
removal.
5.4 Action
by Written Consent. Any action required or permitted to be
taken by the stockholders of the Corporation may be effected by
written consent.
5.5 Advance
Notice. Advance notice of stockholder nominations for
election of directors and other business to be brought by
stockholders at any meeting of stockholders shall be given in the
manner provided in the bylaws.
5.6 Special
Meetings. Except as otherwise expressly provided by the
terms of any series of Preferred Stock or applicable law, special
meetings of stockholders of the Corporation may be called by the
Board, the Chairman of the Board, the Chief Executive Officer and
shall be called by the Corporation if requested by one or more
record stockholders representing ownership of at least thirty-three
and one-third percent (33-1/3%) of the outstanding shares of the
Corporation’s stock entitled to vote and who has complied
with the requirements set forth in the bylaws. A special meeting of
stockholders may not be called by any other person.
5.7 Amendments
to the Bylaws. In furtherance and not in limitation of the
powers conferred by statute, the Board is hereby expressly
authorized to adopt, alter, amend or repeal the bylaws of the
Corporation without the assent or vote of the stockholders,
including without limitation the power to fix, from time to time,
the number of directors that shall constitute the whole Board,
subject to the right of the stockholders to alter, amend, or repeal
the bylaws made by the Board.
5.8 Submission
of Contracts to Stockholder Vote. The Board in its
discretion may submit any contract or act for approval or
ratification at any annual meeting of the stockholders or at any
meeting of the stockholders called for the purpose of considering
any such contract or act, and any contract or act that shall be
approved or be ratified by the vote of the holders of a majority of
the stock of the Corporation that is represented in person or by
proxy at such meeting and entitled to vote thereat (provided that a lawful quorum
of stockholders be there represented in person or by proxy) shall
be as valid and as binding upon the Corporation and upon all the
stockholders as though it had been approved or ratified by every
stockholder of the Corporation, whether or not the contract or act
would otherwise be open to legal attack because of directors’
interest or for any other reason.
ARTICLE VI
6.1 Limitation
of Personal Liability. To the fullest extent permitted by
the DGCL, as the same exists or may hereafter be amended, 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 after the
effective date hereof 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. Any repeal or modification of this Article VI by the
stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at
the time of such repeal or modification or with respect to events
occurring prior to such time.
6.2 Indemnification.
(A) Each
person who was or is made a party to, or is threatened to be made a
party to, or is involved in any action, suit, or proceeding,
whether civil, criminal, administrative, or investigative
(hereinafter, a “proceeding”), by reason
of the fact that he or she is or was a director or officer of the
Corporation or 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 employee benefit plans, whether
the basis of such proceeding is alleged action in an official
capacity as such director, officer, employee, or agent, or in any
other capacity while serving as such director, officer, employee, or agent, shall
be indemnified and held harmless by the Corporation to the fullest extent
permitted 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 the DGCL permitted the Corporation to
provide prior to such amendment), against all expense, liability,
and loss (including attorneys’ fees, judgments, fines, other
expenses and losses, amounts paid or to be paid in settlement, and
excise taxes or penalties arising under the Employee Retirement
Income Security Act of 1974) reasonably incurred or suffered by
such person in connection therewith, and such indemnification shall
continue as to a person who has ceased to be a director, officer,
employee, or agent, and shall inure to the benefit of his or her
heirs, executors, and administrators; provided, however, that, except as
provided in paragraph (B) hereof, the Corporation shall indemnify
any such person seeking indemnification in connection with a
proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board. The right
to indemnification conferred in this Article VI shall be a contract
right and shall include the right of a director or officer to be
paid by the Corporation the expenses (including attorneys’
fees) incurred in defending any such proceeding in advance of its
final disposition; provided, however, that the payment of
such expenses incurred by a director or officer 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 person while a director or
officer including, without limitation, service to an employee
benefit plan) in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an
undertaking, which undertaking shall itself be sufficient without
the need for further evaluation of any credit aspects of the
undertaking or with respect to such advancement, by or on behalf of
such director or officer, to repay all amounts so advanced if it
shall ultimately be determined by a final, non-appealable order of
a court of competent jurisdiction that such director or officer is
not entitled to be indemnified under this Article VI or
otherwise.
(B) If
a claim under paragraph (A) of this Article VI is not paid in full
by the Corporation within sixty (60) days after a written claim,
together with reasonable evidence as to the amount of such claim,
has been received by the Corporation, except in the case of a claim
for advancement of expenses (including attorneys’ fees), in
which case the applicable period shall be twenty (20) days, the
claimant may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim, and, if
successful in whole or in part, the claimant shall also be entitled
to be paid the expense, including attorneys’ fees, of
prosecuting such suit. It shall be a defense to any such suit,
other than a suit brought to enforce a claim for expenses
(including attorneys’ fees) incurred in defending any
proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the
Corporation, that the claimant has not met the standards of conduct
that make it permissible under the DGCL for the Corporation to
indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation. Neither the
failure of the Corporation (including the Board or a committee
thereof, independent legal counsel, or its stockholders) to have
made a determination prior to the commencement of such suit that
indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set
forth in the DGCL, nor an actual determination by the Corporation
(including the Board or a committee thereof, independent legal
counsel, or its stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to the suit or
create a presumption that the claimant has not met the applicable
standard of conduct. In any suit brought by an indemnitee to
enforce a right to indemnification or to 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 such
indemnification, or to such advancement of expenses, under this
Article VI or otherwise shall be on the Corporation.
(C) The
right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition
conferred in this Article VI shall not be exclusive of any other
right that any person may have or hereafter acquire under any
statute, provision of the certificate of incorporation, bylaw,
agreement, or vote of stockholders or disinterested directors, or
otherwise.
(D) The
Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee, or agent of the
Corporation or another corporation, partnership, joint venture,
trust, or other enterprise against any such 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.
(E) In
the case of a claim for indemnification or advancement of expenses
against the Corporation under this Article VI arising out of acts,
events, or circumstances for which the claimant, who was at the
relevant time serving as a director, officer, employee, or agent of
any other entity at the request of the Corporation, may be entitled
to indemnification or advancement of expenses pursuant to such
other entity’s certificate of incorporation, bylaws, or other
governing document, or a contractual agreement between the claimant
and such entity, the claimant seeking indemnification or
advancement of expenses hereunder shall first seek indemnification
or advancement of expenses pursuant to any such governing document
or agreement. To the extent that amounts to be paid in
indemnification or advancement to a claimant hereunder are paid by
such other entity, the claimant’s right to indemnification
and advancement of expenses hereunder shall be
reduced.
(F) Neither
any amendment nor repeal of this Article VI, nor the adoption of
any provision of this Certificate of Incorporation inconsistent
with this Article VI, shall eliminate or reduce the effect of this
Article VI in respect of any matter occurring, or any action or
proceeding accruing or arising or that, but for this Article VI,
would accrue or arise, prior to such amendment, repeal or adoption
of an inconsistent provision.
ARTICLE VII
Whenever a
compromise or arrangement is proposed between the Corporation and
its creditors or any class of them and/or between the Corporation
and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application
in a summary way of this Corporation or of any creditor or
stockholder thereof or on the application of any receiver or
receivers appointed for the Corporation under §291 of Title 8
of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the
Corporation under §279 of Title 8 of the Delaware Code order a
meeting of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the
case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in
value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the
case may be, agree to any compromise or arrangement and to any
reorganization of the Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and
the said reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all the creditors
or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on
the Corporation.
ARTICLE VIII
Unless
the Corporation consents in writing to the selection of an
alternative forum, the Court of Chancery of the State of Delaware
shall be the sole and exclusive forum for (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 director, officer or other employee of the Corporation
to the Corporation or the Corporation’s stockholders,
(C) any action asserting a claim arising pursuant to any
provision of the DGCL or the Corporation’s Certificate of
Incorporation or bylaws, or (D) any action asserting a claim
governed by the internal affairs doctrine as such doctrine exists
under the law of the State of Delaware, in all cases to the fullest
extent permitted by law and subject to the court having personal
jurisdiction over the indispensable parties named as defendants.
This paragraph of Article VIII shall not apply to suits brought to
enforce a duty or liability created by the Securities Exchange Act
of 1934, as amended, or any other claim for which the federal
courts have exclusive jurisdiction.
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 holding, owning or otherwise acquiring any
interest in any security of the Corporation shall be deemed to have
notice of and consent to the provisions of this Certificate of
Incorporation.
ARTICLE IX
The
Corporation reserves the right to restate this Certificate of
Incorporation and to amend, alter, change, or repeal any provision
contained in this Certificate of Incorporation (including any
rights, preferences or other designations of Preferred Stock) in
the manner now or hereafter prescribed by law, and all rights and
powers conferred herein on stockholders, directors, and officers
are subject to this reserved power.
IN
WITNESS WHEREOF, the Corporation has caused this Third Amended and
Restated Certificate of Incorporation to be signed by the
undersigned, a duly authorized officer of the Corporation, on July
7, 2020.
|
|
|
|
|
/s/
Rongguo Wei
|
|
Name:
Rongguo Wei
|
|
Title:
Co-Chief Financial Officer
|
|
|
|
|