Common use of Amendment of Certificate of Incorporation Clause in Contracts

Amendment of Certificate of Incorporation. Subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement, the Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by the laws of the State of Delaware, and all powers, preferences and rights of any nature conferred upon stockholders, directors or any other persons by and pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) in its present form or as hereafter amended are granted subject to this reservation. Notwithstanding the foregoing and subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement and except as otherwise provided in this Certificate of Incorporation (including any provision of a Preferred Stock Designation that provides for a greater or lesser vote) and in addition to any other vote required by law, the affirmative vote of at least 662⁄3% of the voting power of the stock outstanding and entitled to vote thereon, voting together as a single class, shall be required for the stockholders to adopt, amend or repeal, or adopt any provision inconsistent with, Article V, Article VI, Article VII, Article VIII, Article X, Article XI, Article XII and Article XIII of this Certificate of Incorporation. For the avoidance of doubt, but subject to the rights of the holders of any outstanding Preferred Stock and subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement, Section 242(d) of the DGCL shall apply to amendments to the Certificate of Incorporation.

Amendment of Certificate of Incorporation. Subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement, the The Corporation reserves the right at any time, and from time to time, to amend, alter, change modify or repeal any provision contained in this Certificate of Incorporation (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by the laws of the State of Delaware, and all powers, preferences and rights of any nature conferred upon stockholders, directors or any other persons by and pursuant to this Certificate the members of Incorporation (including any Preferred Stock Designation) in its present form or as hereafter amended the Corporation are granted subject to this reservation. Notwithstanding Any amendment of, or modification or repeal of any provision contained in, Section B(2), Section C, Section D, Section E or Section F of Article IV or this sentence of this Article IX or, during the foregoing and subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement and except as otherwise provided in Transition Period, Article VI of this Certificate of Incorporation (including any provision subject to the last sentence of Section D(2)(a) of Article IV, by merger or otherwise) shall require, first, the approval of the Board of Directors of the Corporation and, second, the approval of a Preferred Stock Designation that provides for a greater or lesser vote) and in addition to any other vote required by law, the affirmative vote of at least 662⁄3% majority of the voting power of votes cast by the stock outstanding Series B-1 Members and entitled to vote thereonSeries B-2 Members, voting together as a single classclass in accordance with Section C of Article IV. Except as provided in the immediately preceding sentence, any amendment of, or modification or repeal of any provision contained in, this Certificate of Incorporation shall be required require, first, the approval of the Board of Directors of the Corporation and, second, the approval of the Class A Member and no other member or series or class of membership shall have the right to vote on any such amendment or repeal. * * * * Annex A [Form of Assignment Agreement for the stockholders sale of Exercise Right Privilege] The undersigned (the “Selling ERP Holder”) is the holder of record on the official books and records of the Board of Trade of the City of Chicago (“CBOT”) as of May 29, 2007 of (I) a Series B-1 Membership (as defined in the Amended and Restated Certificate of Incorporation of CBOT (the “Certificate of Incorporation”)) in respect of which an Exercise Right Privilege (as defined in Rule 210(b) of the Rules and Regulations of CBOT) (referred to adopt, amend hereinafter as an “ERP”) is issuable but has not been issued or repeal, or adopt any provision inconsistent with, (II) both (a) an ERP and (b) a Series B-1 Membership and proposes to sell such ERP to CBOT for an amount equal to $250,000 in cash pursuant to Section F of Article V, Article VI, Article VII, Article VIII, Article X, Article XI, Article XII and Article XIII IV of this the Certificate of Incorporation. For the avoidance of doubt, but subject The Selling ERP Holder understands that CBOT only has a commitment to the rights purchase an ERP for which delivery of the holders ERP together with this Assignment Agreement, duly executed by the Selling ERP Holder, is made to CBOT during the forty-five (45) day period immediately following the effective time of any outstanding Preferred Stock the merger of CBOT Holdings, Inc. (“CBOT Holdings”) with and subject to the rights granted to the THG Investor into Chicago Mercantile Exchange Holdings Inc. (“CME Holdings”) pursuant to the Stockholders Agreementterms of that certain Agreement and Plan of Merger, Section 242(d) dated as of October 17, 2006, as amended, among the DGCL shall apply to amendments to the Certificate of IncorporationCBOT, CBOT Holdings and CME Holdings.

Amendment of Certificate of Incorporation. Subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement, the The Corporation reserves the right at any time, time and from time to time, time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force that may be added or inserted, in the manner now or hereafter prescribed by this Certificate and the laws of the State of DelawareDGCL; and, and except as set forth in Article VIII, all powersrights, preferences and rights privileges of any whatever nature herein conferred upon stockholders, directors or any other persons by and pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) in its present form or as hereafter amended are granted subject to the right reserved in this reservation. Article X. Notwithstanding the foregoing and subject anything to the rights granted to the THG Investor pursuant to the Stockholders Agreement and except as otherwise provided contrary contained in this Certificate or the Bylaws, and notwithstanding that a lesser percentage or vote may be permitted from time to time by applicable law, no provision of Incorporation Article IV, Article V, Article VI, Article VIII, Article IX and this Article X (including any provision except by virtue of a filing of a Preferred Stock Designation that provides for a greater Designation, but subject to any vote required by law or lesser voteby other provisions of this Certificate with respect to such Preferred Stock Designation) and may be altered, amended or repealed in any respect, nor may any provision of this Certificate or of the Bylaws inconsistent therewith be adopted, unless in addition to any other vote required by this Certificate or otherwise required by law, such alteration, amendment, repeal or adoption is approved at a meeting of the stockholders called for that purpose by the affirmative vote of the holders of at least 662⁄3662/3% of the voting power of all outstanding shares of capital stock of the stock outstanding and Corporation entitled to vote thereongenerally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend or repeal, or adopt any provision inconsistent with, Article V, Article VI, Article VII, Article VIII, Article X, Article XI, Article XII and Article XIII of this Certificate of Incorporation. For the avoidance of doubt, but subject to the rights of the holders of any outstanding Preferred Stock and subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement, Section 242(d) of the DGCL shall apply to amendments to the Certificate of Incorporation.

Amendment of Certificate of Incorporation. Subject to the rights granted to the THG Investor pursuant to the Stockholders AgreementExcept as otherwise provided in this Certificate of Incorporation (including, without limitation, Section 5.3(c) and any provision of a Preferred Stock Designation that provides for a greater or lesser vote), the Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation (including including, without limitation, any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by the laws of the State of Delaware, and all powers, preferences and rights of any nature conferred upon stockholders, directors or any other persons by and pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) in its present form or as hereafter amended are granted subject to this reservation. Notwithstanding the foregoing and subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement and except as otherwise provided in this Certificate of Incorporation (including including, Section 5.3(c) and any provision of a Preferred Stock Designation that provides for a greater or lesser vote) and in addition to any other vote required by applicable law, the affirmative vote of at least 662⁄3% of the voting power of the stock outstanding and entitled to vote thereon, voting together as a single class, shall be required for the stockholders to adopt, amend or repeal, or adopt any provision inconsistent with, Article V, Article VI, Article VII, Article VIII, Article X, Article XI, Article XII and XII, Article XIII and Section 14.1 of this Certificate of Incorporation. For the avoidance of doubt, but subject to the rights of the holders of any outstanding Preferred Stock and subject to the rights granted to the THG Investor pursuant to the Stockholders AgreementSection 5.3(c), Section 242(d) of the DGCL shall apply to amendments to the this Certificate of Incorporation.

Amendment of Certificate of Incorporation. Subject If any provision of this Certificate becomes or is declared on any ground by a court of competent jurisdiction to be illegal, unenforceable or void, portions of such provision, or such provision in its entirety, to the rights granted extent necessary, shall be severed from this Certificate, and the court will replace such illegal, void or unenforceable provision of this Certificate with a valid and enforceable provision that most accurately reflects the Corporation’s intent, in order to achieve, to the THG Investor pursuant to the Stockholders Agreementmaximum extent possible, the same economic, business and other purposes of the illegal, void or unenforceable provision. The balance of this Certificate shall be enforceable in accordance with its terms. The Corporation reserves the right at any time, and from time to time, to amend, alter, change amend or repeal any provision contained in this Certificate of Incorporation (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by the laws statute and this Certificate (including any designation of the State of DelawareUndesignated Preferred Stock), and all powers, preferences and rights of any nature conferred upon stockholders, directors or any other persons by and pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) in its present form or as hereafter amended stockholders herein are granted subject to this reservation. Notwithstanding the foregoing and subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement and except Except as otherwise provided in required by this Certificate of Incorporation (including any provision of a any designation of Undesignated Preferred Stock Designation that provides for a greater or lesser vote) and in addition to any other vote required or by law, whenever any vote of the holders of capital stock of the Corporation is required to amend or repeal any provision of this Certificate, such amendment or repeal shall require the affirmative vote of the majority of the outstanding shares of capital stock entitled to vote on such amendment or repeal, and the affirmative vote of the majority of the outstanding shares of each class entitled to vote thereon as a class, at a duly constituted meeting of stockholders called expressly for such purpose. Notwithstanding anything herein to the contrary, the affirmative vote of at least 662⁄3% not less than two thirds (2/3) of the voting power outstanding shares of the capital stock outstanding and entitled to vote thereon, voting together and the affirmative vote of not less than two thirds (2/3) of the outstanding shares of each class entitled to vote thereon as a single class, shall be required for the stockholders to adopt, amend or repeal, or adopt repeal any provision inconsistent with, of Article V, Article VI, Article VII, Article VIII, Article X, Article XI, Article XII and Article XIII IX of this Certificate of Incorporation. For the avoidance of doubt, but subject to the rights of the holders of any outstanding Preferred Stock and subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement, Section 242(d) of the DGCL shall apply to amendments to the Certificate of IncorporationCertificate.

Amendment of Certificate of Incorporation. Subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement, the The Corporation reserves the right at any time, and from time to time, to amend, alter, change or repeal any provision contained in this Certificate of Incorporation (including any Preferred Stock Designation)Incorporation, and any other provisions authorized by the laws of the State of Delaware at the time in force DGCL may be added or inserted, in the manner now or hereafter prescribed by the laws of the State of Delaware, law; and all powersrights, preferences and rights privileges of any whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) in its present form or as hereafter amended are granted subject to the right reserved in this reservation. Article X. Notwithstanding the foregoing and subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement and except as otherwise provided in any other provision of this Certificate of Incorporation (including or any provision of law that might otherwise permit a Preferred Stock Designation that provides for a greater lesser vote or lesser no vote) and , but in addition to any other affirmative vote of the holders of any series of Preferred Stock required by law, by this Certificate of Incorporation or by any Preferred Stock Designation, the affirmative vote of at least 662⁄3% the holders of the a majority in voting power of the stock outstanding and of the Corporation entitled to vote thereon, voting together as a single class, thereon shall be required for to amend, alter, change or repeal any provision of this Certificate of Incorporation, or to adopt any new provision of this Certificate of Incorporation; provided, however, that the stockholders affirmative vote of the holders of at least 66 2/3% in voting power of the stock of the Corporation entitled to adoptvote thereon shall be required to amend, amend alter, change or repeal, or adopt any provision inconsistent with, any of Article V, Article VI, Article VII, Article VIII, Article X, Article XI, Article XII XII, Article XIII, Article XIV and Article XIII this sentence of this Certificate of Incorporation. For , or in each case, the avoidance of doubt, but subject to the rights of the holders definition of any outstanding Preferred Stock and subject to the rights granted to the THG Investor pursuant to the Stockholders Agreementcapitalized terms used therein or any successor provision (including, Section 242(d) without limitation, any such article or section as renumbered as a result of the DGCL shall apply to amendments to the any amendment, alteration, change, repeal or adoption of any provision (other than such article or section as renumbered, or this sentence), in each case, of this Certificate of Incorporation). Any amendment, repeal or modification of any of Article VI, Article VII, and this sentence shall not adversely affect any right or protection of any person existing thereunder with respect to any act or omission occurring prior to such repeal or modification.

Amendment of Certificate of Incorporation. Subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement, the The Corporation reserves the right at any time, and from time to time, to amend, alter, change amend or repeal any provision contained in this Certificate of Incorporation (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force may be added or inserted, in the manner now or hereafter prescribed by the laws of the State of Delawarestatute and this Certificate, and all powers, preferences and rights of any nature conferred upon stockholders, directors or any other persons by and pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) in its present form or as hereafter amended stockholders herein are granted subject to this reservation. Notwithstanding Whenever any vote of the foregoing and subject holders of capital stock of the Corporation is required to the rights granted to the THG Investor pursuant to the Stockholders Agreement and except as otherwise provided in this Certificate of Incorporation (including amend or repeal any provision of a Preferred Stock Designation that provides for a greater or lesser vote) this Certificate, and in addition to any other vote of holders of capital stock that is required by this Certificate or by law, such amendment or repeal shall require the affirmative vote of the majority of the outstanding shares of capital stock entitled to vote on such amendment or repeal, and the affirmative vote of the majority of the outstanding shares of each class entitled to vote thereon as a class, at least 662⁄3a duly constituted meeting of stockholders called expressly for such purpose; provided, however, that the affirmative vote of not less than 75% of the voting power outstanding shares of the capital stock outstanding and entitled to vote thereonon such amendment or repeal, voting together and the affirmative vote of not less than 75% of the outstanding shares of each class entitled to vote thereon as a single class, shall be required for the stockholders to adopt, amend or repeal, or adopt repeal any provision inconsistent with, of Article V, Article VI, Article VII, Article VIII, Article IX, Article X, Article XI, XI or Article XII and Article XIII of this Certificate Certificate. THIS SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION is executed as of Incorporationthis ____ day of __________, 2014. For MergeWorthRx Corp. By: Name: Title: EXHIBIT I AMENDED AND RESTATED BY-LAWS OF MERGEWORTHRX CORP. (the avoidance of doubt, but subject to the rights of the holders of any outstanding Preferred Stock and subject to the rights granted to the THG Investor pursuant to the Stockholders Agreement, Section 242(d“Corporation”) of the DGCL shall apply to amendments to the Certificate of Incorporation.ARTICLE I