Common use of Certificate of Incorporation and Bylaws; Directors and Officers Clause in Contracts

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate of incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate of incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate); (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Sub as in effect immediately prior to the Effective Time; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Certificate of incorporation Incorporation of the Surviving Corporation shall be amended in its entirety immediately after the Effective Time to conform to the Certificate of Incorporation of Acquisition Sub as in effect immediately prior to the Effective Time, except that the name of the Surviving Corporation shall be “Xxxxxxxx Coffee, Inc.”; (b) the Bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate Bylaws of incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate); (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Acquisition Sub as in effect immediately prior to the Effective Time; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the directors and officers of Merger Acquisition Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Articles of incorporation Incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to Exhibit B; (b) the Bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate of incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate); (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws Bylaws of Merger Sub as in effect immediately prior to the Effective Time; and; (c) the directors and of the Surviving Corporation immediately after the Effective Time shall be the directors of Merger Sub immediately prior to the Effective Time; and (d) The officers of the Surviving Corporation immediately after the Effective Time shall be the individuals who are the directors and officers of Merger Sub the Company immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Certificate of incorporation Incorporation of the Surviving Corporation shall be amended and restated as of in its entirety pursuant to the Merger at the Effective Time or immediately thereafter to conform to the certificate Certificate of incorporation Incorporation of Merger Sub as in effect immediately prior to the Effective Time (Time, except that the name of the Surviving Corporation shall be such name as Parent may designate)“GSI COMMERCE, INC.”; (b) the bylaws Bylaws of the Surviving Corporation shall be amended and restated as of at the Effective Time or immediately thereafter to conform to the bylaws Bylaws of Merger Sub as in effect immediately prior to the Effective Time; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate of incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate of incorporation of Merger Sub as in effect immediately prior to the Effective Time (Time, except that the name of the Surviving Corporation shall be such the current name as Parent may designate)of the Company; (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Sub as in effect immediately prior to the Effective Time; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the directors and officers of Merger Xxxxxx Sub immediately prior to the Effective Time, together with such additional individuals until the earlier of their resignation or removal or until their respective successors are duly elected or appointed and qualified, as Parent the case may designatebe.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Certificate of incorporation Incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate Certificate of incorporation Incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate)Time; (b) the bylaws Bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws Bylaws of Merger Sub as in effect immediately prior to the Effective Time; and (c) the directors and officers of Merger Sub immediately prior to the Effective Time shall be the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Certificate of incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate of incorporation Incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate); (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Sub Sub, as in effect immediately prior to the Effective Time, shall be the Certificate of Incorporation of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law; (b) the Bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the Bylaws of the Surviving Corporation until thereafter changed or amended as provided therein or by applicable law; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Certificate of incorporation Incorporation of the Surviving Corporation shall be amended in its entirety immediately after the Effective Time to conform to the Certificate of Incorporation of Acquisition Sub as in effect immediately prior to the Effective Time, except that the name of the Surviving Corporation shall be “Dxxxxxxx Coffee, Inc.”; (b) the Bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate Bylaws of incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate); (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Acquisition Sub as in effect immediately prior to the Effective Time; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the directors and officers of Merger Acquisition Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Certificate of incorporation Incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate Certificate of incorporation Incorporation of Merger Sub as in effect immediately prior to the Effective Time (Sub, except that the name of the Surviving Corporation shall be “The Cybrant Corp.” until thereafter amended as provided by the DGCL and such name as Parent may designate)Certificate of Incorporation; (b) the bylaws Bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws Bylaws of Merger Sub as in effect immediately prior to the Effective Time; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designateselected by Parent.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Certificate of incorporation Incorporation of the Surviving Corporation shall be amended in its entirety immediately after the Effective Time to conform to the Certificate of Incorporation of Acquisition Sub as in effect immediately prior to the Effective Time, except that the name of the Surviving Corporation shall be “Tufco Technologies, Inc.”; (b) the Bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate Bylaws of incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate); (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Acquisition Sub as in effect immediately prior to the Effective Time; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the directors and officers of Merger Acquisition Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (aA) the certificate Certificate of incorporation Incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time in a manner satisfactory to Parent and otherwise to conform substantially to the Certificate of Incorporation of the Company which is attached hereto as Exhibit B; (B) the Bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate of incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate); (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws Bylaws of Merger Sub as in effect immediately prior to the Effective Time; and (cC) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.identified on Exhibit C.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Certificate of incorporation Incorporation of the Surviving Corporation shall be amended and restated as of in its entirety pursuant to the Merger at the Effective Time or immediately thereafter to conform to the certificate Certificate of incorporation Incorporation of Merger Sub as in effect immediately prior to the Effective Time (Time, except that the name of the Surviving Corporation shall be such name as Parent may designate)“XXXXXXX FOODS, INC.”; (b) the bylaws Bylaws of the Surviving Corporation shall be amended and restated as of at the Effective Time or immediately thereafter to conform to the bylaws Bylaws of Merger Sub as in effect immediately prior to the Effective Time; and (c) and the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate articles of incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time in their entirety to conform be identical to the certificate articles of incorporation of Merger Sub as in effect immediately prior to the Effective Time (Time, except that the Company’s name shall be the name of the Surviving Corporation shall be such name as Parent may designate)Corporation; (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Sub as in effect immediately prior to the Effective Time, except that the Company’s name shall be the name of the Surviving Corporation; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: , at the Effective Time: (a) the certificate Certificate of incorporation Incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate Certificate of incorporation Incorporation of Merger Sub as in effect of immediately prior to the Effective Time (except that other than with respect to the name of the Surviving Corporation shall be such name as Parent may designateCorporation); ; (b) the bylaws Bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws Bylaws of Merger Sub as in effect immediately prior to the Effective Time; and and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the those individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Articles of incorporation Incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to Exhibit B; (b) the Bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate of incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate); (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws Bylaws of Merger Sub as in effect immediately prior to the Effective Time; and; (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the directors and serving as officers of Merger Sub the Company immediately prior to the Effective Time, together with such additional ; and (d) the directors of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are designated as directors by written notice from Parent may designateto the Company no later than two business days’ prior to the Effective Time.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Certificate of incorporation Incorporation of the Surviving Corporation shall be amended and restated at the Effective Time to conform to the Certificate of Incorporation of Merger Sub as in effect immediately prior to the Effective Time, except that the name of the Surviving Corporation shall be “The Xxxxx & Wollensky Restaurant Group, Inc.”; (b) the Bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate of incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate); (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws Bylaws of Merger Sub as in effect immediately prior to the Effective Time; and; (c) the directors and of the Surviving Corporation immediately after the Effective Time shall be the individuals who are directors of Merger Sub immediately prior to the Effective Time; and (d) the officers of the Surviving Corporation immediately after the Effective Time shall be the individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate of incorporation of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the certificate of incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate); (b) the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Sub as in effect immediately prior to the Effective Time; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.

Certificate of Incorporation and Bylaws; Directors and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time: (a) the certificate Certificate of incorporation Incorporation of the Surviving Corporation shall be amended and restated as of in its entirety pursuant to the Merger at the Effective Time or immediately thereafter to conform to the certificate Certificate of incorporation Incorporation of Merger Sub as in effect immediately prior to the Effective Time (except that the name of the Surviving Corporation shall be such name as Parent may designate)Time; (b) the bylaws Bylaws of the Surviving Corporation shall be amended and restated as of at the Effective Time or immediately thereafter to conform to the bylaws Bylaws of Merger Sub as in effect immediately prior to the Effective Time; and (c) the directors and officers of the Surviving Corporation immediately after the Effective Time shall be the respective individuals who are the directors and officers of Merger Sub immediately prior to the Effective Time, together with such additional individuals as Parent may designate.