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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
November 13, 2024
AirJoule Technologies Corporation
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-41151 |
|
86-2962208 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer
Identification No.) |
34361 Innovation Drive
Ronan, Montana |
|
59864 |
(Address of principal executive
offices) |
|
(Zip Code) |
(800) 942-3083
(Registrant’s telephone number, including
area code)
Montana Technologies Corporation
(Former name, former address and former fiscal year,
if changed since last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which registered |
Class
A Common Stock, par value $0.0001 per share |
|
AIRJ |
|
Nasdaq
Capital Market |
Warrants
to purchase Class A common stock |
|
AIRJW |
|
Nasdaq
Capital Market |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year
On November 13, 2024, AirJoule Technologies Corporation
(the “Company”) changed its corporate name from “Montana Technologies Corporation” to “AirJoule
Technologies Corporation” through the filing of a Third Amended and Restated Certificate of Incorporation of the Company (the “Amended
Charter”) with the Secretary of State of the State of Delaware. The Company also amended and restated its Bylaws to reflect
the name change, also effective as of November 13, 2024 (the “Amended Bylaws”).
Article IV of the Amended Charter was amended
to reflect the elimination of all provisions relating to Class B Common Stock, par value $0.0001, of the Company (the “Class
B Common Stock”). The Company’s previously outstanding shares of Class B Common Stock were owned by Matthew B. Jore,
the Company’s Chief Executive Officer (the “Class B Shareholder”) and were convertible on a one-for-one
basis into shares of Class A Common Stock, par value $0.0001, of the Company (the “Class A Common Stock”). Effective
November 8, 2024, the Class B Shareholder converted all of his shares of Class B Common Stock for an equal number of shares of Class A
Common Stock. As a result, the Company issued 4,759,642 shares of Class A Common Stock to the Class B Shareholder on November 8, 2024
and 4,759,642 previously outstanding shares of Class B Common Stock were simultaneously retired and may not be reissued. Following this
conversion, the Class A Common stock is the only outstanding class of common stock of the Company.
The foregoing descriptions are subject to, and
qualified in their entirety by reference to, the full text of the Amended Charter and the Amended Bylaws, which are attached hereto as
Exhibit 3.1 and Exhibit 3.2, respectively, and are incorporated herein by reference.
Item 7.01 Regulation FD Disclosure
On November
13, 2024, the Company issued a press release announcing its name change, a copy of which is furnished as Exhibit 99.1 and is incorporated
herein by reference.
In accordance
with General Instruction B.2 of Form 8-K, the information contained in this Current Report on Form 8-K under Item
7.01 and set forth in the attached Exhibit 99.1 is deemed to be “furnished” solely pursuant to Item 7.01 of Form 8-K and
shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) or otherwise subject to the liabilities of that section, nor shall such information be deemed
incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth
by specific reference in such a filing.
Item 9.01 Financial Statements and Exhibits
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
AIRJOULE Technologies Corporation |
|
|
|
Date: November 13, 2024 |
By: |
/s/ Stephen S. Pang |
|
Name: |
Stephen S. Pang |
|
Title: |
Chief Financial Officer |
2
Exhibit
3.1
THIRD
AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
Montana
Technologies Corporation
Montana Technologies Corporation
(the “Corporation”), a corporation organized and existing under the General Corporation Law of the State of Delaware
(the “DGCL”), does hereby certify as follows:
1. The name of the Corporation
is Montana Technologies Corporation. The Corporation was incorporated under the name Power & Digital Infrastructure Acquisition II
Corp. by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on March 23, 2021
(the “Original Certificate”).
2. An Amended and Restated
Certificate of Incorporation, which amended and restated the Original Certificate in its entirety, was filed with the Secretary of State
of the State of Delaware on December 9, 2021 (as amended from time to time, the “First A&R Certificate”).
3. A Second Amended and Restated
Certificate of Incorporation, which amended and restated the First A&R Certificate in its entirety, was filed with the Secretary
of State of the State of Delaware on March 15, 2024 (the “Second A&R Certificate”).
4. This Third Amended and
Restated Certificate of Incorporation (this “Third A&R Certificate”), which amends and restates the Second A&R
Certificate in its entirety, has been approved by the Board of Directors of the Corporation (the “Board of Directors”)
in accordance with Sections 242 and 245 of the DGCL.
5. The text of the Second
A&R Certificate is hereby amended and restated by this Third A&R Certificate to read in its entirety as set forth in EXHIBIT
A attached hereto.
6. This Third A&R Certificate
shall become immediately effective upon its filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, Montana
Technologies Corporation has caused this Third A&R Certificate to be signed by a duly authorized officer of the Corporation, on November
13, 2024.
|
MONTANA TECHNOLOGIES CORPORATION |
|
|
|
By: |
/s/ Matthew B. Jore |
|
Name: |
Matthew B. Jore |
|
Title: |
Chief Executive Officer |
EXHIBIT
A
ARTICLE
I
NAME
The name of the corporation
is AirJoule Technologies Corporation (the “Corporation”).
ARTICLE
II
REGISTERED OFFICE AND AGENT
The address of the Corporation’s
registered office in the State of Delaware is 8 The Green, Suite B, Dover, Kent county, Delaware 19901, and the name of its registered
agent at such address is Northwest Registered Agent Service, Inc.
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 (the “DGCL”) as it now exists or may hereafter be amended and supplemented.
ARTICLE
IV
CAPITAL STOCK
The total number of shares
of capital stock that the Corporation shall have authority to issue is 625,000,000, consisting of two classes as follows: 600,000,000
shares of common stock, par value $0.0001 per share (“Common Stock”); and 25,000,000 shares of preferred stock, par
value $0.0001 per share (“Preferred Stock”).
The Corporation has the authority
to create and issue rights, warrants and options entitling the holders thereof to acquire from the Corporation any shares of its capital
stock of any class or classes, with such rights, warrants and options to be evidenced by or in instrument(s) approved by the Board of
Directors of the Corporation (the “Board of Directors”). The Board of Directors is empowered to set the exercise price,
duration, times for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration
to be received for any shares of capital stock issuable upon exercise thereof may not be less than the par value thereof.
The designations and the
powers, privileges and rights, and the qualifications, limitations or restrictions thereof in respect of each class of capital stock
of the Corporation are as follows:
1. General. The voting,
dividend, liquidation, and other rights and powers of the Common Stock are subject to and qualified by the rights, powers and preferences
of any series of Preferred Stock as may be designated by the Board of Directors and outstanding from time to time.
2. Voting.
| a. | Except as otherwise provided herein (including
any Certificate of Designation) or otherwise required by law, the holders of the shares of
Common Stock shall exclusively possess all voting power with respect to the Corporation. |
| b. | Each share of Common Stock shall entitle
the record holder thereof as of the applicable record date to one (1) vote per share in person
or by proxy on all matters submitted to a vote of the holders of Common Stock, whether voting
separately as a class or otherwise. |
| c. | Except as otherwise required in this Third
Amended and Restated Certificate of Incorporation, the holders of shares of Common Stock
shall vote (or, if any holders of shares of Preferred Stock are entitled to vote together
with the holders of Common Stock, as a single class with such holders of Preferred Stock)
on all matters submitted to a vote of stockholders of the Corporation. |
| d. | Except as otherwise provided herein (including
any Certificate of Designation) or otherwise required by law, at any annual or special meeting
of the stockholders of the Corporation, holders of the Common Stock shall have the exclusive
right to vote for the election of the Corporation’s directors and on all other matters
properly submitted to a vote of the stockholders. |
| e. | Except as otherwise required by law, holders
of Common Stock, as such, shall not be entitled to vote on any amendment to this Third Amended
and Restated Certificate (including any Certificate of Designation) that relates solely to
the rights, powers, preferences (or the qualifications, limitations or restrictions thereof)
or other terms of one or more outstanding series of Preferred Stock if the holders of such
affected series are entitled, either separately or together with the holders of one or more
other such series, to vote thereon pursuant to this Third Amended and Restated Certificate
(including any Certificate of Designation) or pursuant to the DGCL. |
Subject to the rights of
any holders of any outstanding series of Preferred Stock, 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 affirmative vote of the holders of a majority of the stock of the
Corporation entitled to vote thereon. Notwithstanding the immediately preceding sentence, the number of authorized shares of any particular
class may not be decreased below the number of shares of such class then outstanding, plus in the case of Common Stock, the number of
shares of Common Stock issuable in connection with the exercise of all outstanding options, warrants, exchange rights, conversion rights
or similar rights for Common Stock.
3. Intentionally Omitted.
4. Dividends. Subject
to applicable law and the rights and preferences of any holders of any outstanding series of Preferred Stock, the holders of Common Stock,
as such, shall be entitled to the payment of dividends on the Common Stock when, as and if declared by the Board of Directors in accordance
with applicable law. Except as otherwise provided in this Article IV, dividends of cash or property may not be declared or
paid on any class of Common Stock unless a dividend of the same amount per share and same type of cash or property (or combination thereof)
per share is concurrently declared or paid on all other classes of Common Stock.
5. Stock Adjustments.
In no event will any stock dividend, stock split, reverse stock split, combination of stock, reclassification or recapitalization be
declared or made on any class of Common Stock (each, a “Stock Adjustment”) unless a corresponding Stock Adjustment
for all other classes of Common Stock at the time outstanding is made in the same proportion and the same manner (unless the holders
of shares representing a majority of the voting power of any such other class of Common Stock (voting separately as a single class) waive
such requirement in writing, in which event no such Stock Adjustment shall be made for such other class of Common Stock).
6. Liquidation. Subject
to the rights and preferences of any holders of any shares of any outstanding series of Preferred Stock, in the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary, the funds and assets of the Corporation that may be legally
distributed to the Corporation’s stockholders shall be distributed among the holders of the then outstanding Common Stock pro
rata in accordance with the number of shares of Common Stock held by each such holder.
7. Equal Treatment.
Except as expressly provided in this Article IV, all shares of Common Stock shall, as among each other, have the same rights and
privileges and rank equally, share ratably and be identical in all respects as to all matters (unless holders of shares representing
a majority of the voting power of any class of Common Stock (voting separately as a single class) waive such requirement in advance and
in writing to different treatment as to such class of Common Stock, in which event different treatment may be permitted for such class
of Common Stock). Without limiting the generality of the foregoing, unless holders of shares representing a majority of the voting power
of any class of Common Stock (voting separately as a single class) waive such requirement in advance and in writing to different treatment
as to such class of Common Stock, in which event different treatment may be permitted for such class of Common Stock, (i) in the event
of a merger, consolidation or other business combination requiring the approval of the holders of the Corporation’s capital stock
entitled to vote thereon (whether or not the Corporation is the surviving entity), the holders of any class of Common Stock shall have
the right to receive, or the right to elect to receive, the same form of consideration and the same amount of consideration (on a per
share basis), if any, as the holders of any other class of Common Stock, and (ii) in the event of (a) any tender or exchange offer to
acquire any shares of Common Stock by any third party pursuant to an agreement to which the Corporation is a party or (b) any tender
or exchange offer by the Corporation to acquire any shares of Common Stock, pursuant to the terms of the applicable tender or exchange
offer, the holders of any class of Common Stock shall have the right to receive, or the right to elect to receive, the same form of consideration
and the same amount of consideration (on a per share basis), if any, as the holders of any other class of Common Stock.
8. Intentionally Removed.
9. Intentionally Removed.
Shares of Preferred Stock
may be issued from time to time in one or more series, each of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the creation and issuance of such series adopted by the Board of Directors as hereinafter provided.
Authority is hereby expressly
granted to the Board of Directors from time to time to issue the Preferred Stock in one or more series, and in connection with the creation
of any such series, by adopting a resolution or resolutions providing for the issuance of the shares thereof and by filing a certificate
of designation relating thereto in accordance with the DGCL (a “Certificate of Designation”), to determine and fix
the number of shares of such series and such voting powers, full or limited, or no voting powers, and such designations, preferences
and relative participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, conversion rights, redemption privileges and liquidation preferences, and to increase or decrease
(but not below the number of shares of such series then outstanding) the number of shares of any series as shall be stated and expressed
in such resolutions, all to the fullest extent now or hereafter permitted by the DGCL. Without limiting the generality of the foregoing,
the resolution or resolutions providing for the creation and issuance of any series of Preferred Stock may provide that such series shall
be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by law and this Third Amended
and Restated Certificate (including any Certificate of Designation). Except as otherwise required by law, holders of any series of Preferred
Stock shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by this Third Amended and Restated
Certificate (including any Certificate of Designation).
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 affirmative
vote of the holders of a majority of the stock of the Corporation entitled to vote, irrespective of the provisions of Section 242(b)(2)
of the DGCL.
ARTICLE
V
BOARD OF DIRECTORS
For the management of the
business and for the conduct of the affairs of the Corporation it is further provided that:
A. Subject to the special
rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the directors of the Corporation shall
be classified with respect to the time for which they severally hold office into three classes, as nearly equal in number as possible
and designated as Class I, Class II and Class III. The initial Class I directors shall serve for a term expiring at the first annual
meeting of the stockholders following the date of this Third Amended and Restated Certificate; the initial Class II directors shall serve
for a term expiring at the second annual meeting of the stockholders following the date of this Third Amended and Restated Certificate;
and the initial Class III directors shall serve for a term expiring at the third annual meeting following the date of this Third Amended
and Restated Certificate. At each annual meeting of the stockholders of the Corporation beginning with the first annual meeting of the
stockholders following the date of this Third Amended and Restated Certificate, subject to the special rights of the holders of one or
more outstanding series of Preferred Stock to elect directors, the successors of the class of directors whose term expires at that meeting
shall be elected to hold office for a term expiring at the annual meeting of the stockholders held in the third year following the year
of their election. Each director shall hold office until his or her successor is duly elected and qualified or until his or her earlier
death, resignation, disqualification or removal. No decrease in the number of directors shall shorten the term of any incumbent director.
The Board of Directors is authorized to assign members of the Board of Directors already in office to Class I, Class II and Class III.
B. Except as otherwise expressly
provided by the DGCL or this Third Amended and Restated Certificate, the business and affairs of the Corporation shall be managed by
or under the direction of the Board of Directors. The number of directors that shall constitute the whole Board of Directors shall be
fixed exclusively by one or more resolutions adopted from time to time by the Board of Directors.
C. Subject to the special
rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the Board of Directors or any individual
director may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least two-thirds
(66 and 2/3%) of the voting power of all of the then outstanding shares of voting stock of the Corporation entitled to vote at an election
of directors.
D. Subject to the special
rights of the holders of one or more outstanding series of Preferred Stock to elect directors, except as otherwise provided by law, any
vacancies on the Board of Directors resulting from death, resignation, disqualification, retirement, removal or other causes and any
newly created directorships resulting from any increase in the number of directors shall be filled exclusively by the affirmative vote
of a majority of the directors then in office, even though less than a quorum, or by a sole remaining director (other than any directors
elected by the separate vote of one or more outstanding series of Preferred Stock), and shall not be filled by the stockholders. Any
director appointed in accordance with the preceding sentence shall hold office until the expiration of the term of the class to which
such director shall have been appointed or until his or her earlier death, resignation, retirement, disqualification, or removal.
E. Whenever the holders of
any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series or separately
as a class with one or more such other series, to elect directors at an annual or special meeting of stockholders, the election, term
of office, removal and other features of such directorships shall be governed by the terms of this Third Amended and Restated Certificate
(including any Certificate of Designation). Notwithstanding anything to the contrary in this Article V, the number of directors
that may be elected by the holders of any such series of Preferred Stock shall be in addition to the number fixed pursuant to paragraph
B of this Article V, and the total number of directors constituting the whole Board of Directors shall be automatically adjusted
accordingly. Except as otherwise provided in the Certificate of Designation(s) in respect of one or more series of Preferred Stock, whenever
the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the
provisions of such Certificate of Designation(s), the terms of office of all such additional directors elected by the holders of such
series of Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such
additional directors, shall forthwith terminate (in which case each such director thereupon shall cease to be qualified as, and shall
cease to be, a director) and the total authorized number of directors of the Corporation shall automatically be reduced accordingly.
F. In furtherance and not
in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to adopt, amend or repeal the Third
Amended and Restated Bylaws of the Corporation (as amended and/or restated from time to time, the “Bylaws”). 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 Third Amended and
Restated Certificate (including any Certificate of Designation in respect of one or more series of Preferred Stock) or the Bylaws of
the Corporation, the adoption, amendment or repeal of the Bylaws of the Corporation by the stockholders of the Corporation shall require
the affirmative vote of the holders of at least two-thirds (66 and 2/3%) of the voting power of all of the then outstanding shares of
voting stock of the Corporation entitled to vote generally in an election of directors.
G. The directors of the Corporation
need not be elected by written ballot unless the Bylaws so provide.
ARTICLE
VI
STOCKHOLDERS
A. Any action required or
permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of the stockholders of
the Corporation, and shall not be taken by written consent in lieu of a meeting. Notwithstanding the foregoing, any action required or
permitted to be taken by the holders of any series of Preferred Stock, voting separately as a series or separately as a class with one
or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly so provided
by the applicable Certificate of Designation relating to such series of Preferred Stock, if a consent or consents in writing, setting
forth the action so taken, shall be signed by the holders of outstanding shares of the relevant series of Preferred Stock having not
less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled
to vote thereon were present and voted and shall be delivered to the Corporation in accordance with the applicable provisions of the
DGCL.
B. Subject to the special
rights of the holders of one or more series of Preferred Stock, special meetings of the stockholders of the Corporation may be called,
for any purpose or purposes, at any time only by or at the direction of the Board of Directors, the Chairperson of the Board of Directors,
the Chief Executive Officer or the President, and shall not be called by any other person or persons.
C. Advance notice of stockholder
nominations for the election of directors and of other business proposed to be brought by stockholders before any meeting of the stockholders
of the Corporation shall be given in the manner provided in the Bylaws of the Corporation.
ARTICLE
VII
LIABILITY
No director or officer of
the Corporation shall have any personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary
duty as a director or officer, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL
as the same exists or hereafter may be amended. Any amendment, repeal or modification of this Article VII, or the adoption of
any provision of this Third Amended and Restated Certificate inconsistent with this Article VII, shall not adversely affect any
right or protection of a director or officer of the Corporation with respect to any act or omission occurring prior to such amendment,
repeal, modification or adoption. If the DGCL is amended after approval by the stockholders of this Article VII to authorize corporate
action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of
the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL as so amended.
ARTICLE
VIII
FORUM SELECTION
Unless the Corporation consents
in writing to the selection of an alternative forum, (a) the Court of Chancery (the “Chancery Court”) of the State
of Delaware (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware
or other state courts of the State of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i)
any derivative action, suit or proceeding brought on behalf of the Corporation, (ii) any action, suit or proceeding asserting a claim
of breach of a fiduciary duty owed by any director, officer or stockholder of the Corporation to the Corporation or to the Corporation’s
stockholders, (iii) any action, suit or proceeding arising pursuant to any provision of the DGCL, the Bylaws or this Third Amended and
Restated Certificate (as either may be amended from time to time) or (iv) any action, suit or proceeding asserting a claim against the
Corporation governed by the internal affairs doctrine; and (b) subject to the preceding provisions of this Article VIII, 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, including all causes of action asserted against any defendant to such complaint.
If any action the subject matter of which is within the scope of clause (a) of the immediately preceding sentence is filed in a court
other than the courts in the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder
shall be deemed to have consented to (x) the personal jurisdiction of the state and federal courts in the State of Delaware in connection
with any action brought in any such court to enforce the provisions of clause (a) of the immediately preceding sentence and (y) having
service of process made upon such stockholder in any such action by service upon such stockholder’s counsel in the Foreign Action
as agent for such stockholder.
Any person or entity purchasing
or otherwise acquiring any interest in any security of the Corporation shall be deemed to have notice of and consented to this Article
VIII. This Article VIII is intended to benefit and may be enforced by the Corporation, its officers and directors, the underwriters
to any offering giving rise to such complaint, and any other professional or entity whose profession gives authority to a statement made
by that person or entity and who has prepared or certified any part of the documents underlying the offering. Notwithstanding the foregoing,
the provisions of this Article VIII shall not apply to suits brought to enforce any liability or duty created by the Securities
Exchange Act of 1934, as amended, or any other claim for which the federal courts of the United States have exclusive jurisdiction.
If any provision or provisions
of this Article VIII shall be held to be invalid, illegal or unenforceable as applied to any circumstances for any reason whatsoever,
(a) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article
VIII (including, without limitation, each portion of any paragraph of this Article VIII containing any such provision held
to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected
or impaired thereby and (b) the application of such provision to other persons or entities and circumstances shall not in any way be
affected or impaired thereby.
ARTICLE
IX
AMENDMENTS
A. Notwithstanding anything
contained in this Third Amended and Restated Certificate to the contrary, in addition to any vote required by applicable law, the following
provisions in this Third Amended and Restated Certificate may be amended, altered, repealed or rescinded, in whole or in part, or any
provision inconsistent therewith or herewith may be adopted, only by the affirmative vote of the holders of at least two-thirds (66 and
2/3%) of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote thereon, voting together
as a single class: Part B of Article IV, Article V, Article VI, Article VII, Article VIII and this
Article IX.
B. If any provision or provisions
of this Third Amended and Restated Certificate shall be held to be invalid, illegal or unenforceable as applied to any circumstance for
any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining
provisions of this Third Amended and Restated Certificate (including, without limitation, each portion of any paragraph of this Third
Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable that is not itself held to
be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by applicable law, in any way be affected or impaired
thereby and (ii) to the fullest extent permitted by applicable law, the provisions of this Third Amended and Restated Certificate (including,
without limitation, each such portion of any paragraph of this Third Amended and Restated Certificate containing any such provision held
to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees
and agents from personal liability in respect of their good faith service to or for the benefit of the Corporation to the fullest extent
permitted by law.
9
Exhibit 3.2
Third Amended and Restated Bylaws of
AirJoule Technologies Corporation
(a Delaware corporation)
Table of Contents
|
|
Page |
Article I - Corporate Offices |
1 |
|
|
|
|
| 1.1 | Registered Office |
1 |
| 1.2 | Other Offices |
1 |
| | |
|
Article II - Meetings of Stockholders 1 |
|
|
|
|
|
| 2.1 | Place of Meetings |
1 |
| 2.2 | Annual Meeting |
1 |
| 2.3 | Special Meeting |
1 |
| 2.4 | Notice of Business to be Brought before a Meeting. |
2 |
| 2.5 | Notice of Nominations for Election to the Board. |
5 |
| 2.6 | Notice of Stockholders’ Meetings |
8 |
| 2.7 | Quorum |
8 |
| 2.8 | Adjourned Meeting; Notice |
9 |
| 2.9 | Conduct of Business |
9 |
| 2.10 | Voting |
10 |
| 2.11 | Record Date for Stockholder Meetings and Other Purposes |
10 |
| 2.12 | Proxies |
10 |
| 2.13 | List of Stockholders Entitled to Vote |
11 |
| 2.14 | Inspectors of Election |
11 |
| 2.15 | Delivery to the Corporation. |
12 |
| | |
|
Article III - Directors |
12 |
|
|
|
|
| 3.1 | Powers |
12 |
| 3.2 | Number of Directors |
12 |
| 3.3 | Election, Qualification and Term of Office of Directors |
12 |
| 3.4 | Resignation and Vacancies |
12 |
| 3.5 | Place of Meetings; Meetings by Telephone |
13 |
| 3.6 | Regular Meetings |
13 |
| 3.7 | Special Meetings; Notice |
13 |
| 3.8 | Quorum |
14 |
| 3.9 | Board Action without a Meeting |
14 |
| 3.10 | Fees and Compensation of Directors |
14 |
| | |
|
Article IV - Committees |
14 |
|
|
|
|
| 4.1 | Committees of Directors |
14 |
| 4.2 | Committee Minutes |
15 |
| 4.3 | Meetings and Actions of Committees |
15 |
| 4.4 | Subcommittees. |
15 |
Table of Contents
(continued)
|
Page |
Article V - Officers |
16 |
|
|
|
|
| 5.1 | Officers |
16 |
| 5.2 | Appointment of Officers |
16 |
| 5.3 | Subordinate Officers |
16 |
| 5.4 | Removal and Resignation of Officers |
16 |
| 5.5 | Vacancies in Offices |
16 |
| 5.6 | Representation of Shares of Other Corporations |
16 |
| 5.7 | Authority and Duties of Officers |
17 |
| 5.8 | Compensation. |
17 |
| | |
|
Article VI - Records |
17 |
|
|
|
Article VII - General Matters |
17 |
|
|
|
| 7.1 | Execution of Corporate Contracts and Instruments |
17 |
| 7.2 | Stock Certificates |
17 |
| 7.3 | Special Designation of Certificates. |
18 |
| 7.4 | Lost Certificates |
18 |
| 7.5 | Shares Without Certificates |
18 |
| 7.6 | Construction; Definitions |
19 |
| 7.7 | Dividends |
19 |
| 7.8 | Fiscal Year |
19 |
| 7.9 | Seal |
19 |
| 7.10 | Transfer of Stock |
19 |
| 7.11 | Stock Transfer Agreements |
19 |
| 7.12 | Registered Stockholders |
20 |
| 7.13 | Waiver of Notice |
20 |
| | |
|
Article VIII - Notice |
20 |
|
|
|
|
| 8.1 | Delivery of Notice; Notice by Electronic Transmission |
20 |
| | |
|
Article IX - Indemnification |
21 |
|
|
|
|
| 9.1 | Indemnification of Directors and Officers |
21 |
| 9.2 | Indemnification of Others |
21 |
| 9.3 | Prepayment of Expenses |
22 |
| 9.4 | Determination; Claim |
22 |
| 9.5 | Non-Exclusivity of Rights |
22 |
| 9.6 | Insurance |
22 |
| 9.7 | Other Indemnification |
22 |
| 9.8 | Continuation of Indemnification |
22 |
| 9.9 | Amendment or Repeal; Interpretation |
23 |
| | |
|
Article X - Amendments |
23 |
|
|
|
Article XI - Definitions |
24 |
Third Amended and Restated Bylaws of
AirJoule Technologies Corporation
Article I - Corporate Offices
1.1 Registered Office.
The address of the registered
office of AirJoule Technologies Corporation (the “Corporation”) in the State of Delaware, and the name of its registered
agent at such address, shall be as set forth in the Corporation’s certificate of incorporation, as the same may be amended and/or
restated from time to time (the “Certificate of Incorporation”).
1.2 Other Offices.
The Corporation may have
additional offices at any place or places, within or outside the State of Delaware, as the Corporation’s board of directors (the
“Board”) may from time to time establish or as the business and affairs of the Corporation may require.
Article II - Meetings of
Stockholders
2.1 Place of Meetings.
Meetings of stockholders
shall be held at any place, within or outside the State of Delaware, designated by the Board. The Board may, in its sole discretion,
determine that a meeting of stockholders shall not be held at any place, but may instead be held solely by means of remote communication
as authorized by Section 211(a)(2) of the General Corporation Law of the State of Delaware (the “DGCL”). In the
absence of any such designation or determination, stockholders’ meetings shall be held at the Corporation’s principal executive
office, whether within or outside of the State of Delaware.
2.2 Annual Meeting.
The Board shall designate
the date and time of the annual meeting. At the annual meeting, the stockholders entitled to vote on such matters shall elect those directors
of the Corporation to fill any term of a directorship that expires on the date of such annual meeting and may transact any other business
as may properly be brought before the meeting in accordance with Section 2.4. The Board may postpone, reschedule or cancel any
previously scheduled annual meeting of stockholders.
2.3 Special Meeting.
Special meetings of the stockholders
may be called only by such persons and only in such manner as set forth in the Certificate of Incorporation.
No business may be transacted
at any special meeting of stockholders other than the business specified in the notice of such meeting. The Board may postpone, reschedule
or cancel any previously scheduled special meeting of stockholders.
2.4 Notice of Business
to be Brought before a Meeting.
(a) At an annual meeting
of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought
before an annual meeting, business must be (i) specified in the Corporation’s notice of meeting (or any supplement thereto)
given by or at the direction of the Board, (ii) if not specified in a notice of meeting, otherwise brought before the meeting by or at
the direction of the Board or the Chairman of the Board or (iii) otherwise properly brought before the meeting by a stockholder
present in person who (A) (1) was a record owner of shares of the Corporation both at the time of giving the notice provided for in this
Section 2.4 and at the time of the meeting, (2) is entitled to vote at the meeting and (3) has complied with this Section 2.4
in all applicable respects or (B) properly made such proposal in accordance with Rule 14a-8 under the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder (as so amended and inclusive of such rules and regulations, the
“Exchange Act”). The foregoing clause (iii) shall be the exclusive means for a stockholder to propose business to
be brought before an annual meeting of the stockholders. The only matters that may be brought before a special meeting are the matters
specified in the notice of meeting given by or at the direction of the person calling the meeting pursuant to Section 2.3, and
stockholders shall not be permitted to propose business to be brought before a special meeting of the stockholders. For purposes of this
Section 2.4, “present in person” shall mean that the stockholder proposing that the business be brought
before the annual meeting of the Corporation, or a qualified representative of such proposing stockholder, appear at such annual meeting.
A “qualified representative” of such proposing stockholder shall be a duly authorized officer, manager or partner
of such stockholder or any other person authorized by a writing executed by such stockholder or an electronic transmission delivered
by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders. Stockholders
seeking to nominate persons for election to the Board must comply with Section 2.5, and this Section 2.4 shall not
be applicable to nominations except as expressly provided in Section 2.5.
(b) For business to be properly
brought before an annual meeting by a stockholder, the stockholder must (i) provide Timely Notice (as defined below) thereof in
writing and in proper form to the Secretary of the Corporation and (ii) provide any updates or supplements to such notice at the
times and in the forms required by this Section 2.4. To be timely, a stockholder’s notice must be delivered to, or
mailed and received at, the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty
(120) days prior to the one-year anniversary of the preceding year’s annual meeting; provided, however, that if no annual
meeting was held in the preceding year, to be timely, a stockholder’s notice must be so delivered, or mailed and received, not
earlier than the close of business on the one hundred and twentieth (120th) day prior to such annual meeting and not later
than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or, if later, the tenth (10th)
day following the day on which public disclosure of the date of such annual meeting was first made by the Corporation; provided, further,
that if the date of the annual meeting is more than thirty (30) days before or more than sixty (60) days after such anniversary date,
to be timely, a stockholder’s notice must be so delivered, or mailed and received, not later than the ninetieth (90th)
day prior to such annual meeting or, if later, the tenth (10th) day following the day on which public disclosure of the date
of such annual meeting was first made by the Corporation (such notice within such time periods, “Timely Notice”).
In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the
giving of Timely Notice as described above.
(c) To be in proper form
for purposes of this Section 2.4, a stockholder’s notice to the Secretary of the Corporation shall set forth:
(i) As to each Proposing Person
(as defined below), (A) the name and address of such Proposing Person (including, if applicable, the name and address that appear
on the Corporation’s books and records); and (B) the class or series and number of shares of the Corporation that are, directly
or indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Person,
except that such Proposing Person shall in all events be deemed to beneficially own any shares of any class or series of the Corporation
as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future (the disclosures to be made pursuant
to the foregoing clauses (A) and (B) are referred to as “Stockholder Information”);
(ii) As to each Proposing Person,
(A) the full notional amount of any securities that, directly or indirectly, underlie any “derivative security” (as such
term is defined in Rule 16a-1(c) under the Exchange Act) that constitutes a “call equivalent position” (as such term is defined
in Rule 16a-1(b) under the Exchange Act) (“Synthetic Equity Position”) and that is, directly or indirectly, held or
maintained by such Proposing Person with respect to any shares of any class or series of shares of the Corporation; provided that,
for the purposes of the definition of “Synthetic Equity Position,” the term “derivative security” shall also
include any security or instrument that would not otherwise constitute a “derivative security” as a result of any feature
that would make any conversion, exercise or similar right or privilege of such security or instrument becoming determinable only at some
future date or upon the happening of a future occurrence, in which case the determination of the amount of securities into which such
security or instrument would be convertible or exercisable shall be made assuming that such security or instrument is immediately convertible
or exercisable at the time of such determination; and, provided, further, that any Proposing Person satisfying the requirements
of Rule 13d-1(b)(1) under the Exchange Act (other than a Proposing Person that so satisfies Rule 13d-1(b)(1) under the Exchange Act solely
by reason of Rule 13d-1(b)(1)(ii)(E)) shall not be deemed to hold or maintain the notional amount of any securities that underlie a Synthetic
Equity Position held by such Proposing Person as a hedge with respect to a bona fide derivatives trade or position of such Proposing
Person arising in the ordinary course of such Proposing Person’s business as a derivatives dealer, (B) any rights to dividends
on the shares of any class or series of shares of the Corporation owned beneficially by such Proposing Person that are separated or separable
from the underlying shares of the Corporation, (C) any material pending or threatened Proceeding in which such Proposing Person is a
party or material participant involving the Corporation or any of its officers or directors, or any affiliate of the Corporation, (D) any
other material relationship between such Proposing Person, on the one hand, and the Corporation or any affiliate of the Corporation,
on the other hand, (E) any direct or indirect material interest in any material contract or agreement of such Proposing Person with the
Corporation or any affiliate of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement
or consulting agreement), (F) a representation that such Proposing Person intends or is part of a group that intends to deliver a proxy
statement or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve
or adopt the proposal or otherwise solicit proxies from stockholders in support of such proposal and (G) any other information relating
to such Proposing Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection
with solicitations of proxies or consents by such Proposing Person in support of the business proposed to be brought before the meeting
pursuant to Section 14(a) of the Exchange Act (the disclosures to be made pursuant to the foregoing clauses (A) through (G) are referred
to as “Disclosable Interests”); provided, however, that Disclosable Interests shall not include any
such disclosures with respect to the ordinary course business activities of any broker, dealer, commercial bank, trust company or other
nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice required by these
bylaws on behalf of a beneficial owner; and
(iii) As to each item of business
that the stockholder proposes to bring before the annual meeting, (A) a brief description of the business desired to be brought
before the annual meeting, the reasons for conducting such business at the annual meeting and any material interest in such business
of each Proposing Person, (B) the text of the proposal or business (including the text of any resolutions proposed for consideration
and in the event that such business includes a proposal to amend the bylaws, the language of the proposed amendment), and (C) a
reasonably detailed description of all agreements, arrangements and understandings (x) between or among any of the Proposing Persons
or (y) between or among any Proposing Person and any other person or entity (including their names) in connection with the proposal of
such business by such stockholder; and (D) any other information relating to such item of business that would be required to be disclosed
in a proxy statement or other filing required to be made in connection with solicitations of proxies in support of the business proposed
to be brought before the meeting pursuant to Section 14(a) of the Exchange Act; provided, however, that the disclosures
required by this Section 2.4(c)(iii) shall not include any disclosures with respect to any broker, dealer, commercial bank, trust
company or other nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice
required by these bylaws on behalf of a beneficial owner.
For purposes of this Section
2.4, the term “Proposing Person” shall mean (i) the stockholder providing the notice of business proposed
to be brought before an annual meeting, (ii) the beneficial owner or beneficial owners, if different, on whose behalf the notice
of the business proposed to be brought before the annual meeting is made, and (iii) any participant (as defined in paragraphs (a)(ii)-(vi)
of Instruction 3 to Item 4 of Schedule 14A) with such stockholder in such solicitation.
(d) A Proposing Person shall
update and supplement its notice to the Corporation of its intent to propose business at an annual meeting, if necessary, so that the
information provided or required to be provided in such notice pursuant to this Section 2.4 shall be true and correct as of the
record date for stockholders entitled to vote at the meeting and as of the date that is ten (10) business days prior to the meeting or
any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary
of the Corporation at the principal executive offices of the Corporation not later than five (5) business days after the record date
for stockholders entitled to vote at the meeting (in the case of the update and supplement required to be made as of such record date),
and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof
(and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the
case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement
thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of
these bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder,
extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder
to amend or update any proposal or to submit any new proposal, including by changing or adding matters, business or resolutions proposed
to be brought before a meeting of the stockholders.
(e) Notwithstanding anything
in these bylaws to the contrary, no business shall be conducted at an annual meeting that is not properly brought before the meeting
in accordance with this Section 2.4. The presiding officer of the meeting shall, if the facts warrant, determine that the
business was not properly brought before the meeting in accordance with this Section 2.4, and if he or she should so determine,
he or she shall so declare to the meeting and any such business not properly brought before the meeting shall not be transacted.
(f) This Section 2.4
is expressly intended to apply to any business proposed to be brought before an annual meeting of stockholders other than any proposal
made in accordance with Rule 14a-8 under the Exchange Act and included in the Corporation’s proxy statement. In addition to the
requirements of this Section 2.4 with respect to any business proposed to be brought before an annual meeting, each Proposing
Person shall comply with all applicable requirements of the Exchange Act with respect to any such business. Nothing in this Section
2.4 shall be deemed to affect the rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
(g) For purposes of these
bylaws, “public disclosure” shall mean disclosure in a press release reported by a national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
2.5 Notice of Nominations
for Election to the Board.
(a) Nominations of any person
for election to the Board at an annual meeting or at a special meeting (but only if the election of directors is a matter specified in
the notice of meeting given by or at the direction of the person calling such special meeting) may be made at such meeting only (i) by
or at the direction of the Board, including by any committee or persons authorized to do so by the Board or these bylaws, or (ii) by
a stockholder present in person (A) who was a record owner of shares of the Corporation both at the time of giving the notice provided
for in this Section 2.5 and at the time of the meeting, (B) is entitled to vote at the meeting, and (C) has complied
with this Section 2.5 as to such notice and nomination. For purposes of this Section 2.5, “present in person”
shall mean that the stockholder proposing that the business be brought before the meeting of the Corporation, or a qualified representative
of such stockholder, appear at such meeting. A “qualified representative” of such proposing stockholder shall be a
duly authorized officer, manager or partner of such stockholder or any other person authorized by a writing executed by such stockholder
or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such
person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at
the meeting of stockholders. The foregoing clause (ii) shall be the exclusive means for a stockholder to make any nomination of a person
or persons for election to the Board at an annual meeting or special meeting.
(b) (i) Without qualification,
for a stockholder to make any nomination of a person or persons for election to the Board at an annual meeting, the stockholder must
(1) provide Timely Notice (as defined in Section 2.4) thereof in writing and in proper form to the Secretary of the Corporation,
(2) provide the information, agreements and questionnaires with respect to such stockholder and its candidate for nomination as required
to be set forth by this Section 2.5 and (3) provide any updates or supplements to such notice at the times and in the forms
required by this Section 2.5.
(ii) Without qualification,
if the election of directors is a matter specified in the notice of meeting given by or at the direction of the person calling a special
meeting, then for a stockholder to make any nomination of a person or persons for election to the Board at a special meeting, the stockholder
must (i) provide Timely Notice thereof in writing and in proper form to the Secretary of the Corporation at the principal executive
offices of the Corporation, (ii) provide the information with respect to such stockholder and its candidate for nomination as required
by this Section 2.5 and (iii) provide any updates or supplements to such notice at the times and in the forms required by
this Section 2.5. To be timely, a stockholder’s notice for nominations to be made at a special meeting must be delivered
to, or mailed and received at, the principal executive offices of the Corporation not earlier than the one hundred twentieth (120th)
day prior to such special meeting and not later than the ninetieth (90th) day prior to such special meeting or, if later,
the tenth (10th) day following the day on which public disclosure (as defined in Section 2.4) of the date of such special
meeting was first made.
(iii) In no event shall any
adjournment or postponement of an annual meeting or special meeting or the announcement thereof commence a new time period for the giving
of a stockholder’s notice as described above.
(iv) In no event may a Nominating
Person provide Timely Notice with respect to a greater number of director candidates than are subject to election by shareholders at
the applicable meeting. If the Corporation shall, subsequent to such notice, increase the number of directors subject to election at
the meeting, such notice as to any additional nominees shall be due on the later of (i) the conclusion of the time period for Timely
Notice, (ii) the date set forth in Section 2.5(b)(ii) or (iii) the tenth day following the date of public disclosure (as defined
in Section 2.4) of such increase.
(c) To be in proper form
for purposes of this Section 2.5, a stockholder’s notice to the Secretary of the Corporation shall set forth:
(i) As to each
Nominating Person (as defined below), the Stockholder Information (as defined in Section 2.4(c)(i), except that for purposes of
this Section 2.5, the term “Nominating Person” shall be substituted for the term “Proposing Person”
in all places it appears in Section 2.4(c)(i));
(ii) As to each
Nominating Person, any Disclosable Interests (as defined in Section 2.4(c)(ii), except that for purposes of this Section
2.5, the term “Nominating Person” shall be substituted for the term “Proposing Person” in all
places it appears in Section 2.4(c)(ii) and the disclosure with respect to the business to be brought before the meeting in Section
2.4(c)(ii) shall be made with respect to the election of directors at the meeting); and
(iii) As to each
candidate whom a Nominating Person proposes to nominate for election as a director, (A) all information with respect to such candidate
for nomination that would be required to be set forth in a stockholder’s notice pursuant to this Section 2.5 if such candidate
for nomination were a Nominating Person, (B) all information relating to such candidate for nomination that is required to be disclosed
in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors in a
contested election pursuant to Section 14(a) under the Exchange Act (including such candidate’s written consent to being named
in the proxy statement as a nominee and to serving as a director if elected), (C) a description of any direct or indirect material
interest in any material contract or agreement between or among any Nominating Person, on the one hand, and each candidate for nomination
or his or her respective associates or any other participants in such solicitation, on the other hand, including, without limitation,
all information that would be required to be disclosed pursuant to Item 404 under Regulation S-K if such Nominating Person were the “registrant”
for purposes of such rule and the candidate for nomination were a director or executive officer of such registrant and (D) a completed
and signed questionnaire, representation and agreement as provided in Section 2.5(f).
For purposes of this Section
2.5, the term “Nominating Person” shall mean (i) the stockholder providing the notice of the nomination proposed
to be made at the meeting, (ii) the beneficial owner or beneficial owners, if different, on whose behalf the notice of the nomination
proposed to be made at the meeting is made, and (iii) any other participant in such solicitation.
(d) A stockholder providing
notice of any nomination proposed to be made at a meeting shall further update and supplement such notice, if necessary, so that the
information provided or required to be provided in such notice pursuant to this Section 2.5 shall be true and correct as of the
record date for stockholders entitled to vote at the meeting and as of the date that is ten (10) business days prior to the meeting or
any adjournment or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary
of the Corporation at the principal executive offices of the Corporation not later than five (5) business days after the record date
for stockholders entitled to vote at the meeting (in the case of the update and supplement required to be made as of such record date),
and not later than eight (8) business days prior to the date for the meeting or, if practicable, any adjournment or postponement thereof
(and, if not practicable, on the first practicable date prior to the date to which the meeting has been adjourned or postponed) (in the
case of the update and supplement required to be made as of ten (10) business days prior to the meeting or any adjournment or postponement
thereof). For the avoidance of doubt, the obligation to update and supplement as set forth in this paragraph or any other Section of
these bylaws shall not limit the Corporation’s rights with respect to any deficiencies in any notice provided by a stockholder,
extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder who has previously submitted notice hereunder
to amend or update any nomination or to submit any new nomination.
(e) In addition to the requirements
of this Section 2.5 with respect to any nomination proposed to be made at a meeting, each Nominating Person shall comply with
all applicable requirements of the Exchange Act with respect to any such nominations.
(f) To be eligible to be
a candidate for election as a director of the Corporation at an annual or special meeting, a candidate must be nominated in the manner
prescribed in Section 2.5 and the candidate for nomination, whether nominated by the Board or by a stockholder of record, must
have previously delivered (in accordance with the time period prescribed for delivery in a notice to such candidate given by or on behalf
of the Board), to the Secretary of the Corporation at the principal executive offices of the Corporation, (i) a completed written questionnaire
(in a form provided by the Corporation) with respect to the background, qualifications, stock ownership and independence of such proposed
nominee and (ii) a written representation and agreement (in form provided by the Corporation) that such candidate for nomination (A)
is not and, if elected as a director during his or her term of office, will not become a party to (1) any agreement, arrangement or understanding
with, and has not given and will not give any commitment or assurance to, any person or entity as to how such proposed nominee, if elected
as a director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) or (2) any Voting
Commitment that could limit or interfere with such proposed nominee’s ability to comply, if elected as a director of the Corporation,
with such proposed nominee’s fiduciary duties under applicable law, (B) is not, and will not become a party to, any agreement,
arrangement or understanding with any person or entity other than the Corporation with respect to any direct or indirect compensation
or reimbursement for service as a director that has not been disclosed to the Corporation and (C) if elected as a director of the Corporation,
will comply with all applicable corporate governance, conflict of interest, confidentiality, stock ownership and trading and other policies
and guidelines of the Corporation applicable to directors and in effect during such person’s term in office as a director (and,
if requested by any candidate for nomination, the Secretary of the Corporation shall provide to such candidate for nomination all such
policies and guidelines then in effect).
(g) The Board may also require
any proposed candidate for nomination as a Director to furnish such other information as may reasonably be requested by the Board in
writing prior to the meeting of stockholders at which such candidate’s nomination is to be acted upon in order for the Board to
determine the eligibility of such candidate for nomination to be an independent director of the Corporation in accordance with the Corporation’s
corporate governance guidelines.
(h) A candidate for nomination
as a director shall further update and supplement the materials delivered pursuant to this Section 2.5, if necessary, so that
the information provided or required to be provided pursuant to this Section 2.5 shall be true and correct as of the record date
for stockholders entitled to vote at the meeting and as of the date that is ten (10) business days prior to the meeting or any adjournment
or postponement thereof, and such update and supplement shall be delivered to, or mailed and received by, the Secretary of the Corporation
at the principal executive offices of the Corporation (or any other office specified by the Corporation in any public announcement) not
later than five (5) business days after the record date for stockholders entitled to vote at the meeting (in the case of the update and
supplement required to be made as of such record date), and not later than eight (8) business days prior to the date for the meeting
or, if practicable, any adjournment or postponement thereof (and, if not practicable, on the first practicable date prior to the date
to which the meeting has been adjourned or postponed) (in the case of the update and supplement required to be made as of ten (10) business
days prior to the meeting or any adjournment or postponement thereof). For the avoidance of doubt, the obligation to update and supplement
as set forth in this paragraph or any other Section of these bylaws shall not limit the Corporation’s rights with respect to any
deficiencies in any notice provided by a stockholder, extend any applicable deadlines hereunder or enable or be deemed to permit a stockholder
who has previously submitted notice hereunder to amend or update any proposal or to submit any new proposal, including by changing or
adding nominees, matters, business or resolutions proposed to be brought before a meeting of the stockholders.
(i) No candidate shall be
eligible for nomination as a director of the Corporation unless such candidate for nomination and the Nominating Person seeking to place
such candidate’s name in nomination has complied with this Section 2.5. The presiding officer at the meeting shall, if the
facts warrant, determine that a nomination was not properly made in accordance with Section 2.5, and if he or she should so determine,
he or she shall so declare such determination to the meeting, the defective nomination shall be disregarded and any ballots cast for
the candidate in question (but in the case of any form of ballot listing other qualified nominees, only the ballots cast for the nominee
in question) shall be void and of no force or effect.
(j) Notwithstanding anything
in these bylaws to the contrary, no candidate for nomination shall be eligible to be seated as a director of the Corporation unless nominated
and elected in accordance with Section 2.5.
2.6 Notice of Stockholders’
Meetings.
Unless otherwise provided
by law, the Certificate of Incorporation or these bylaws, the notice of any meeting of stockholders shall be sent or otherwise given
in accordance with Section 8.1 not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder
entitled to vote at such meeting. The notice shall specify the place, if any, date and time of the meeting, the means of remote communication,
if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a
special meeting, the purpose or purposes for which the meeting is called.
2.7 Quorum.
Unless otherwise provided
by law, the Certificate of Incorporation or these bylaws, the holders of a majority in voting power of the stock issued and outstanding
and entitled to vote, present in person, or by remote communication, if applicable, or represented by proxy, shall constitute a quorum
for the transaction of business at all meetings of the stockholders. A quorum, once established at a meeting, shall not be broken by
the withdrawal of enough votes to leave less than a quorum. If, however, a quorum is not present or represented at any meeting of the
stockholders, then either (i) the person presiding over the meeting or (ii) a majority in voting power of the stockholders
entitled to vote at the meeting, present in person, or by remote communication, if applicable, or represented by proxy, shall have power
to recess the meeting or adjourn the meeting from time to time in the manner provided in Section 2.8 until a quorum is present
or represented. At any recessed or adjourned meeting at which a quorum is present or represented, any business may be transacted that
might have been transacted at the meeting as originally noticed.
2.8 Adjourned Meeting;
Notice.
When a meeting is adjourned
to another time or place, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time, place,
if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present
in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken or are provided in any other
manner permitted by the DGCL. At any adjourned meeting, the Corporation may transact any business which might have been transacted at
the original meeting. If the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each
stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled
to vote is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of
such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned
meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such meeting as of the record
date so fixed for notice of such adjourned meeting.
2.9 Conduct of Business.
The date and time of the
opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting
by the person presiding over the meeting. The Board may adopt by resolution such rules and regulations for the conduct of the meeting
of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board,
the person presiding over any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess
and/or adjourn the meeting, to prescribe such rules, regulations and procedures (which need not be in writing) and to do all such acts
as, in the judgment of such presiding person, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures,
whether adopted by the Board or prescribed by the person presiding over the meeting, may include, without limitation, the following:
(i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting
and the safety of those present (including, without limitation, rules and procedures for removal of disruptive persons from the meeting);
(iii) limitations on attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized
and constituted proxies or such other persons as the person presiding over the meeting shall determine; (iv) restrictions on entry to
the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants.
The presiding person at any meeting of stockholders, in addition to making any other determinations that may be appropriate to the conduct
of the meeting (including, without limitation, determinations with respect to the administration and/or interpretation of any of the
rules, regulations or procedures of the meeting, whether adopted by the Board or prescribed by the person presiding over the meeting),
shall, if the facts warrant, determine and declare to the meeting that a matter of business was not properly brought before the meeting
and if such presiding person should so determine, such presiding person shall so declare to the meeting and any such matter or business
not properly brought before the meeting shall not be transacted or considered. Unless and to the extent determined by the Board or the
person presiding over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary
procedure.
2.10 Voting.
Except as may be otherwise
provided in the Certificate of Incorporation, these bylaws or the DGCL, each stockholder shall be entitled to one (1) vote for each share
of capital stock held by such stockholder.
Except as otherwise provided
by the Certificate of Incorporation, at all duly called or convened meetings of stockholders at which a quorum is present, for the election
of directors, a plurality of the votes cast shall be sufficient to elect a director. Except as otherwise provided by the Certificate
of Incorporation, these bylaws, the rules or regulations of any stock exchange applicable to the Corporation, or applicable law or pursuant
to any regulation applicable to the Corporation or its securities, each other matter presented to the stockholders at a duly called or
convened meeting at which a quorum is present shall be decided by the affirmative vote of the holders of a majority in voting power of
the votes cast (excluding abstentions and broker non-votes) on such matter.
2.11 Record Date for Stockholder
Meetings and Other Purposes.
In order that the Corporation
may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board
may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the
Board, and which record date shall, unless otherwise required by law, not be more than sixty (60) days nor less than ten (10) days before
the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled
to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of
the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders shall be the close of business on the next day preceding the
day on which notice is first given, or, if notice is waived, at the close of business on the day next preceding the day on which the
meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply
to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders
entitled to vote at the adjourned meeting; and in such case shall also fix as the record date for stockholders entitled to notice of
such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith
at the adjourned meeting.
In order that the Corporation
may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment or any rights or the stockholders
entitled to exercise any rights in respect of any change, conversion or exchange of capital stock, or for the purposes of any other lawful
action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date
is adopted, and which record date shall be not more than sixty (60) days prior to such action. If no record date is fixed, the record
date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution
relating thereto.
2.12 Proxies.
Each stockholder entitled
to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy authorized by an instrument
in writing or by a transmission permitted by law filed in accordance with the procedure established for the meeting, but no such proxy
shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. The revocability of
a proxy that states on its face that it is irrevocable shall be governed by the provisions of Section 212 of the DGCL. A proxy may be
in the form of an electronic transmission which sets forth or is submitted with information from which it can be determined that the
transmission was authorized by the stockholder.
2.13 List of Stockholders
Entitled to Vote.
The Corporation shall prepare,
at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided,
however, that if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of
the meeting, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date),
arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.
The Corporation shall not be required to include electronic mail addresses or other electronic contact information on such list. Such
list shall be open to the examination of any stockholder, for any purpose germane to the meeting for a period of at least ten (10) days
prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access
to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the Corporation’s principal
executive office. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may
take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held
at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected
by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be
open to examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of the meeting. Such list shall presumptively determine the identity of
the stockholders entitled to vote at the meeting and the number of shares held by each of them. Except as otherwise provided by law,
the stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list of stockholders required by this
Section 2.13 or to vote in person or by proxy at any meeting of stockholders.
2.14 Inspectors of Election.
Before any meeting of stockholders,
the Corporation shall appoint an inspector or inspectors of election to act at the meeting or its adjournment and make a written report
thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If any
person appointed as inspector or any alternate fails to appear or fails or refuses to act, then the person presiding over the meeting
shall appoint a person to fill that vacancy.
Such inspectors shall:
(i) determine the number of
shares outstanding and the voting power of each, the number of shares represented at the meeting and the validity of any proxies and
ballots;
(ii) count all votes or ballots;
(iii) count and tabulate all
votes;
(iv) determine and retain for
a reasonable period a record of the disposition of any challenges made to any determination by the inspector(s); and
(v) certify its or their determination
of the number of shares represented at the meeting and its or their count of all votes and ballots.
Each inspector, before entering
upon the discharge of the duties of inspector, shall take and sign an oath faithfully to execute the duties of inspection with strict
impartiality and according to the best of such inspector’s ability. Any report or certificate made by the inspectors of election
is prima facie evidence of the facts stated therein. The inspectors of election may appoint such persons to assist them in performing
their duties as they determine.
2.15 Delivery to the Corporation.
Whenever this Article
II requires one or more persons (including a record or beneficial owner of stock) to deliver a document or information to the Corporation
or any officer, employee or agent thereof (including any notice, request, questionnaire, revocation, representation or other document
or agreement), such document or information shall be in writing exclusively (and not in an electronic transmission) and shall be delivered
exclusively by hand (including, without limitation, overnight courier service) or by certified or registered mail, return receipt requested,
and the Corporation shall not be required to accept delivery of any document not in such written form or so delivered. For the avoidance
of doubt, the Corporation expressly opts out of Section 116 of the DGCL with respect to the delivery of information and documents to
the Corporation required by this Article II.
Article III - Directors
3.1 Powers.
Except as otherwise provided
by the Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under the direction
of the Board.
3.2 Number of Directors.
Subject to the Certificate
of Incorporation, the total number of directors constituting the Board shall be determined from time to time by resolution of the Board.
No reduction of the authorized number of directors shall have the effect of removing any director before that director’s term of
office expires.
3.3 Election, Qualification
and Term of Office of Directors.
Except as provided in Section 3.4,
and subject to the Certificate of Incorporation, each director, including a director elected to fill a vacancy or newly created directorship,
shall hold office until the expiration of the term of the class, if any, for which elected and until such director’s successor
is elected and qualified or until such director’s earlier death, resignation, disqualification or removal. Directors need not be
stockholders or residents of the State of Delaware. The Certificate of Incorporation or these bylaws may prescribe qualifications for
directors.
3.4 Resignation and Vacancies.
Any director may resign at
any time upon notice given in writing or by electronic transmission to the Corporation. The resignation shall take effect at the time
specified therein or upon the happening of an event specified therein, and if no time or event is specified, at the time of its receipt.
When one or more directors so resigns and the resignation is effective at a future date or upon the happening of an event to occur on
a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen
shall hold office as provided in Section 3.3.
Unless otherwise provided
in the Certificate of Incorporation or these bylaws, vacancies resulting from the death, resignation, disqualification or removal of
any director, and newly created directorships resulting from any increase in the authorized number of directors shall be filled only
by a majority of the directors then in office, although less than a quorum, or by a sole remaining director.
3.5 Place of Meetings;
Meetings by Telephone.
The Board may hold meetings,
both regular and special, either within or outside the State of Delaware.
Unless otherwise restricted
by the Certificate of Incorporation or these bylaws, members of the Board, or any committee designated by the Board, may participate
in a meeting of the Board, or any committee, by means of conference telephone or other communications equipment by means of which all
persons participating in the meeting can hear each other, and such participation in a meeting pursuant to this bylaw shall constitute
presence in person at the meeting.
3.6 Regular Meetings.
Regular meetings of the Board
may be held within or outside the State of Delaware and at such time and at such place as which has been designated by the Board and
publicized among all directors, either orally or in writing, by telephone, including a voice-messaging system or other system designed
to record and communicate messages, facsimile, telegraph or telex, or by electronic mail or other means of electronic transmission. No
further notice shall be required for regular meetings of the Board.
3.7 Special Meetings; Notice.
Special meetings of the Board
for any purpose or purposes may be called at any time by the chairperson of the Board, the Chief Executive Officer, the President or
the Secretary of the Corporation or a majority of the total number of directors constituting the Board.
Notice of the time and place
of special meetings shall be:
| (i) | delivered personally
by hand, by courier or by telephone; |
| (ii) | sent by United States
first-class mail, postage prepaid; |
| (iii) | sent by facsimile or
electronic mail; or |
| (iv) | sent by other means
of electronic transmission, |
directed to each director at that director’s
address, telephone number, facsimile number or electronic mail address, or other address for electronic transmission, as the case may
be, as shown on the Corporation’s records.
If the notice is (i) delivered
personally by hand, by courier or by telephone, (ii) sent by facsimile or electronic mail, or (iii) sent by other means of electronic
transmission, it shall be delivered or sent at least twenty-four (24) hours before the time of the holding of the meeting. If the notice
is sent by U.S. mail, it shall be deposited in the U.S. mail at least four (4) days before the time of the holding of the meeting. The
notice need not specify the place of the meeting (if the meeting is to be held at the Corporation’s principal executive office)
nor the purpose of the meeting.
3.8 Quorum.
At all meetings of the Board,
unless otherwise provided by the Certificate of Incorporation, a majority of the total number of directors shall constitute a quorum
for the transaction of business. The vote of a majority of the directors present at any meeting at which a quorum is present shall be
the act of the Board, except as may be otherwise specifically provided by statute, the Certificate of Incorporation or these bylaws.
If a quorum is not present at any meeting of the Board, then the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum is present.
3.9 Board Action without
a Meeting.
Unless otherwise restricted
by the Certificate of Incorporation or these bylaws, any action required or permitted to be taken at any meeting of the Board, or of
any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in
writing or by electronic transmission. After an action is taken, the consent or consents relating thereto shall be filed with the minutes
of the proceedings of the Board, or the committee thereof, in the same paper or electronic form as the minutes are maintained. Such action
by written consent or consent by electronic transmission shall have the same force and effect as a unanimous vote of the Board.
3.10 Fees and Compensation
of Directors.
Unless otherwise restricted
by the Certificate of Incorporation or these bylaws, the Board shall have the authority to fix the compensation, including fees and reimbursement
of expenses, of directors for services to the Corporation in any capacity.
Article IV - Committees
4.1 Committees of Directors.
The Board may designate one
(1) or more committees, each committee to consist, of one (1) or more of the directors of the Corporation. The Board may designate one
(1) or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the
committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution
of the Board or in these bylaws, shall have and may exercise all the powers and authority of the Board in the management of the business
and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it; but no
such committee shall have the power or authority to (i) approve or adopt, or recommend to the stockholders, any action or matter
expressly required by the DGCL to be submitted to stockholders for approval, or (ii) adopt, amend or repeal any bylaw of the Corporation.
4.2 Committee Minutes.
Each committee shall keep
regular minutes of its meetings and report the same to the Board when required.
4.3 Meetings and Actions
of Committees.
Meetings and actions of committees
shall be governed by, and held and taken in accordance with, the provisions of:
| (i) | Section 3.5
(place of meetings; meetings by telephone); |
| (ii) | Section 3.6
(regular meetings); |
| (iii) | Section 3.7
(special meetings; notice); |
| (iv) | Section 3.9
(board action without a meeting); and |
| (v) | Section 7.14 (waiver
of notice), |
with such changes in the context of those bylaws
as are necessary to substitute the committee and its members for the Board and its members; provided, however, that:
(i) the time of regular meetings
of committees may be determined either by resolution of the Board or by resolution of the committee;
(ii) special meetings of committees
may also be called by resolution of the Board or the chairperson of the applicable committee; and
(iii) the Board may adopt rules
for the governance of any committee to override the provisions that would otherwise apply to the committee pursuant to this Section
4.3, provided that such rules do not violate the provisions of the Certificate of Incorporation or applicable law.
4.4 Subcommittees.
Unless otherwise provided
in the Certificate of Incorporation, these bylaws or the resolutions of the Board designating the committee, a committee may create one
(1) or more subcommittees, each subcommittee to consist of one (1) or more members of the committee, and delegate to a subcommittee any
or all of the powers and authority of the committee.
Article V - Officers
5.1 Officers.
The officers of the Corporation
shall include a Chief Executive Officer and a Secretary. The Corporation may also have, at the discretion of the Board, a Chairperson
of the Board, a Vice Chairperson of the Board, a President, a Chief Financial Officer, a Chief Operating Officer, a Chief Legal Officer,
a Chief Administrative Officer, a Chief Technology Officer, a Treasurer, one (1) or more Vice Presidents, one (1) or more Assistant Vice
Presidents, one (1) or more Assistant Treasurers, one (1) or more Assistant Secretaries, and any such other officers as may be appointed
in accordance with the provisions of these bylaws. Any number of offices may be held by the same person. No officer need be a stockholder
or director of the Corporation.
5.2 Appointment of Officers.
The Board shall appoint the
officers of the Corporation, except such officers as may be appointed in accordance with the provisions of Section 5.3.
5.3 Subordinate Officers.
The Board may appoint, or
empower the Chief Executive Officer or, in the absence of a Chief Executive Officer, the President, to appoint, such other officers and
agents as the business of the Corporation may require. Each of such officers and agents shall hold office for such period, have such
authority, and perform such duties as are provided in these bylaws or as the Board may from time to time determine.
5.4 Removal and Resignation
of Officers.
Subject to the rights, if
any, of an officer under any contract of employment, any officer may be removed, either with or without cause, by the Board or, except
in the case of an officer chosen by the Board, by any officer upon whom such power of removal may be conferred by the Board.
Any officer may resign at
any time by giving written notice to the Corporation. Any resignation shall take effect at the date of the receipt of that notice or
at any later time specified in that notice. Unless otherwise specified in the notice of resignation, the acceptance of the resignation
shall not be necessary to make it effective. Any resignation is without prejudice to the rights, if any, of the Corporation under any
contract to which the officer is a party.
5.5 Vacancies in Offices.
Any vacancy occurring in
any office of the Corporation shall be filled by the Board or as provided in Section 5.2.
5.6 Representation of Shares
of Other Corporations.
The Chairperson of the Board,
the Chief Executive Officer, or the President of this Corporation, or any other person authorized by the Board, the Chief Executive Officer
or the President, is authorized to vote, represent and exercise on behalf of this Corporation all rights incident to any and all shares
or voting securities of any other corporation or other person standing in the name of this Corporation. The authority granted herein
may be exercised either by such person directly or by any other person authorized to do so by proxy or power of attorney duly executed
by such person having the authority.
5.7 Authority and Duties
of Officers.
All officers of the Corporation
shall respectively have such authority and perform such duties in the management of the business of the Corporation as may be provided
herein or designated from time to time by the Board and, to the extent not so provided, as generally pertain to their respective offices,
subject to the control of the Board.
5.8 Compensation.
The compensation of the officers
of the Corporation for their services as such shall be fixed from time to time by or at the direction of the Board. An officer of the
Corporation shall not be prevented from receiving compensation by reason of the fact that he or she is also a director of the Corporation.
Article VI - Records
A stock ledger consisting
of one or more records in which the names of all of the Corporation’s stockholders of record, the address and number of shares
registered in the name of each such stockholder, and all issuances and transfers of stock of the Corporation are recorded in accordance
with Section 224 of the DGCL shall be administered by or on behalf of the Corporation. Any records administered by or on behalf of the
Corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or
by means of, or be in the form of, any information storage device, or method, or one or more electronic networks or databases (including
one or more distributed electronic networks or databases), provided that the records so kept can be converted into clearly legible
paper form within a reasonable time and, with respect to the stock ledger, that the records so kept (i) can be used to prepare the list
of stockholders specified in Sections 219 and 220 of the DGCL, (ii) record the information specified in Sections 156, 159, 217(a) and
218 of the DGCL, and (iii) record transfers of stock as governed by Article 8 of the Uniform Commercial Code as adopted in the State
of Delaware.
Article VII - General Matters
7.1 Execution of Corporate
Contracts and Instruments.
The Board, except as otherwise
provided in these bylaws, may authorize any officer or officers, or agent or agents, to enter into any contract or execute any instrument
in the name of and on behalf of the Corporation; such authority may be general or confined to specific instances.
7.2 Stock Certificates.
The shares of the Corporation
shall be represented by certificates or shall be uncertificated. Certificates for the shares of stock, if any, shall be in such form
as is consistent with the Certificate of Incorporation and applicable law. Every holder of stock
represented by a certificate shall be entitled to have a certificate signed by, or in the name of the Corporation by, any two officers
authorized to sign stock certificates representing the number of shares registered in certificate form. The Chairperson or Vice Chairperson
of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary of the Corporation shall be specifically authorized to sign stock certificates. Any or all of the signatures
on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be
issued by the Corporation with the same effect as if he or she were such officer, transfer agent or registrar at the date of issue.
The Corporation may issue
the whole or any part of its shares as partly paid and subject to call for the remainder of the consideration to be paid therefor. Upon
the face or back of each stock certificate issued to represent any such partly paid shares, or upon the books and records of the Corporation
in the case of uncertificated partly paid shares, the total amount of the consideration to be paid therefor and the amount paid thereon
shall be stated. Upon the declaration of any dividend on fully paid shares, the Corporation shall declare a dividend upon partly paid
shares of the same class, but only upon the basis of the percentage of the consideration actually paid thereon.
7.3 Special Designation of Certificates.
If the Corporation is authorized
to issue more than one class of stock or more than one series of any class, then the powers, the designations, the preferences and the
relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or on the back of the certificate
that the Corporation shall issue to represent such class or series of stock (or, in the case of uncertificated shares, set forth in a
notice provided pursuant to Section 151 of the DGCL); provided, however, that except as otherwise provided in Section 202 of the
DGCL, in lieu of the foregoing requirements, there may be set forth on the face of back of the certificate that the Corporation shall
issue to represent such class or series of stock (or, in the case of any uncertificated shares, included in the aforementioned notice)
a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, the designations, the preferences
and the relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations
or restrictions of such preferences and/or rights.
7.4 Lost Certificates.
Except as provided in this
Section 7.4, no new certificates for shares shall be issued to replace a previously issued certificate unless the latter is surrendered
to the Corporation and cancelled at the same time. The Corporation may issue a new certificate of stock or uncertificated shares in the
place of any certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the
owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to give the Corporation a bond sufficient
to indemnify it against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate
or the issuance of such new certificate or uncertificated shares.
7.5 Shares Without Certificates
The Corporation may adopt
a system of issuance, recordation and transfer of its shares of stock by electronic or other means not involving the issuance of certificates,
provided the use of such system by the Corporation is permitted in accordance with applicable law.
7.6 Construction; Definitions.
Unless the context requires
otherwise, the general provisions, rules of construction and definitions in the DGCL shall govern the construction of these bylaws. Without
limiting the generality of this provision, the singular number includes the plural and the plural number includes the singular.
7.7 Dividends.
The Board, subject to any
restrictions contained in either (i) the DGCL or (ii) the Certificate of Incorporation, may declare and pay dividends upon
the shares of its capital stock. Dividends may be paid in cash, in property or in shares of the Corporation’s capital stock.
The Board may set apart out
of any of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such
reserve. Such purposes shall include but not be limited to equalizing dividends, repairing or maintaining any property of the Corporation,
and meeting contingencies.
7.8 Fiscal Year.
The fiscal year of the Corporation
shall be fixed by resolution of the Board and may be changed by the Board.
7.9 Seal.
The Corporation may adopt
a corporate seal, which shall be adopted and which may be altered by the Board. The Corporation may use the corporate seal by causing
it or a facsimile thereof to be impressed or affixed or in any other manner reproduced.
7.10 Transfer of Stock.
Shares of the stock of the
Corporation shall be transferable in the manner prescribed by law and in these bylaws. Shares of stock of the Corporation shall be transferred
on the books of the Corporation only by the holder of record thereof or by such holder’s attorney duly authorized in writing, upon
surrender to the Corporation of the certificate or certificates representing such shares endorsed by the appropriate person or persons
(or by delivery of duly executed instructions with respect to uncertificated shares), with such evidence of the authenticity of such
endorsement or execution, transfer, authorization and other matters as the Corporation may reasonably require, and accompanied by all
necessary stock transfer stamps. No transfer of stock shall be valid as against the Corporation for any purpose until it shall have been
entered in the stock records of the Corporation by an entry showing the names of the persons from and to whom it was transferred.
7.11 Stock Transfer Agreements.
The Corporation shall have
power to enter into and perform any agreement with any number of stockholders of any one or more classes or series of stock of the Corporation
to restrict the transfer of shares of stock of the Corporation of any one or more classes owned by such stockholders in any manner not
prohibited by the DGCL.
7.12 Registered Stockholders.
The Corporation:
(i) shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares to receive dividends and to vote as such owner; and
(ii) shall not be bound to
recognize any equitable or other claim to or interest in such share or shares on the part of another person, whether or not it shall
have express or other notice thereof, except as otherwise provided by the laws of the State of Delaware.
7.13 Waiver of Notice.
Whenever notice is required
to be given under any provision of the DGCL, the Certificate of Incorporation or these bylaws, a written waiver, signed by the person
entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time of the
event for which notice is to be given, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver
of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting,
to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be specified in any written waiver of notice or any waiver
by electronic transmission unless so required by the Certificate of Incorporation or these bylaws.
Article VIII - Notice
8.1 Delivery of Notice;
Notice by Electronic Transmission.
Without limiting the manner
by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provisions
of the DGCL, the Certificate of Incorporation, or these bylaws may be given in writing directed to the stockholder’s mailing address
(or by electronic transmission directed to the stockholder’s electronic mail address, as applicable) as it appears on the records
of the Corporation and shall be given (1) if mailed, when the notice is deposited in the U.S. mail, postage prepaid, (2) if delivered
by courier service, the earlier of when the notice is received or left at such stockholder’s address or (3) if given by electronic
mail, when directed to such stockholder’s electronic mail address unless the stockholder has notified the Corporation in writing
or by electronic transmission of an objection to receiving notice by electronic mail. A notice by electronic mail must include a prominent
legend that the communication is an important notice regarding the Corporation.
Without limiting the manner
by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provision
of the DGCL, the Certificate of Incorporation or these bylaws shall be effective if given by a form of electronic transmission consented
to by the stockholder to whom the notice is given. Any such consent shall be revocable by the stockholder by written notice or electronic
transmission to the Corporation. Notwithstanding the provisions of this paragraph, the Corporation may give a notice by electronic mail
in accordance with the first paragraph of this section without obtaining the consent required by this paragraph.
Any notice given pursuant
to the preceding paragraph shall be deemed given:
| (i) | if by facsimile telecommunication, when
directed to a number at which the stockholder has consented to receive notice; |
| (ii) | if by a posting on an electronic network
together with separate notice to the stockholder of such specific posting, upon the later
of (A) such posting and (B) the giving of such separate notice; and |
| (iii) | if by any other form of electronic transmission,
when directed to the stockholder. |
Notwithstanding the foregoing,
a notice may not be given by an electronic transmission from and after the time that (1) the Corporation is unable to deliver by such
electronic transmission two (2) consecutive notices given by the Corporation and (2) such inability becomes known to the Secretary or
an Assistant Secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice; provided,
however, that the inadvertent failure to discover such inability shall not invalidate any meeting or other action.
An affidavit of the Secretary
or an Assistant Secretary of the Corporation or of the transfer agent or other agent of the Corporation that the notice has been given
shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
Article IX - Indemnification
9.1 Indemnification of
Directors and Officers.
The Corporation shall indemnify
and hold harmless, to the fullest extent permitted by the DGCL as it presently exists or may hereafter be amended, any director or officer
of the Corporation who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a “Proceeding”) by reason of the fact that he or she, or
a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while serving as a director
or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership (a “covered person”), joint venture, trust, enterprise or non-profit entity, including
service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees,
judgments, fines ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred by such person in connection with
any such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided in Section 9.4, the Corporation shall
be required to indemnify a person in connection with a Proceeding initiated by such person only if the Proceeding was authorized in the
specific case by the Board.
9.2 Indemnification of
Others.
The Corporation shall have
the power to indemnify and hold harmless, to the fullest extent permitted by the DGCL or any other applicable law, as it presently exists
or may hereafter be amended, any employee or agent of the Corporation who was or is made or is threatened to be made a party or is otherwise
involved in any Proceeding by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was
an employee or agent of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent
of another corporation or of a partnership, joint venture, trust, enterprise or non-profit entity, including service with respect to
employee benefit plans, against all liability and loss suffered and expenses reasonably incurred by such person in connection with any
such Proceeding.
9.3 Prepayment of Expenses.
In addition to the obligation
to indemnify conferred in Section 9.1, the Corporation shall to the fullest extent not prohibited by the DGCL or any other applicable
law pay the expenses (including attorneys’ fees) incurred by any covered person, and may pay the expenses incurred by any employee
or agent of the Corporation, in defending any Proceeding in advance of its final disposition; provided, however, that such payment
of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by or on behalf of
the person to repay all amounts advanced if it should be ultimately determined that the person is not entitled to be indemnified under
this Article IX- or otherwise.
9.4 Determination; Claim.
If a claim for indemnification
(following the final disposition of such Proceeding) under this Article IX- is not paid in full within sixty (60) days, or a claim
for advancement of expenses under this Article IX- is not paid in full within thirty (30) days, after a written claim therefor
has been received by the Corporation the covered person may thereafter (but not before) file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim to the fullest extent
permitted by law. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
9.5 Non-Exclusivity of
Rights.
The rights conferred on any
person by this Article IX- shall not be exclusive of any other rights which such person may have or hereafter acquire under any
statute, provision of the Certificate of Incorporation, these bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
9.6 Insurance.
The Corporation may purchase
and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust enterprise or non-profit entity against any liability asserted against him or her and incurred by him or her in any such capacity,
or arising out of his or her status as such, whether or not the Corporation would have the power to indemnify him or her against such
liability under the provisions of the DGCL.
9.7 Other Indemnification.
The Corporation’s obligation,
if any, to indemnify or advance expenses to any person who was or is serving at its request as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust, enterprise or non-profit entity shall be reduced by any amount such person
may collect as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, enterprise
or non-profit enterprise.
9.8 Continuation of Indemnification.
The rights to indemnification
and to prepayment of expenses provided by, or granted pursuant to, this Article IX- shall continue notwithstanding that the person
has ceased to be a director or officer of the Corporation and shall inure to the benefit of the estate, heirs, executors, administrators,
legatees and distributees of such person.
9.9 Amendment or Repeal;
Interpretation.
The provisions of this Article
IX- shall constitute a contract between the Corporation, on the one hand, and, on the other hand, each individual who serves or has
served as a director or officer of the Corporation (whether before or after the adoption of these bylaws), in consideration of such person’s
performance of such services, and pursuant to this Article IX- the Corporation intends to be legally bound to each such current
or former director or officer of the Corporation. With respect to current and former directors and officers of the Corporation, the rights
conferred under this Article IX- are present contractual rights and such rights are fully vested, and shall be deemed to have
vested fully, immediately upon adoption of theses bylaws. With respect to any directors or officers of the Corporation who commence service
following adoption of these bylaws, the rights conferred under this provision shall be present contractual rights and such rights shall
fully vest, and be deemed to have vested fully, immediately upon such director or officer commencing service as a director or officer
of the Corporation. Any repeal or modification of the foregoing provisions of this Article IX- shall not adversely affect any
right or protection (i) hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification
or (ii) under any agreement providing for indemnification or advancement of expenses to an officer or director of the Corporation in
effect prior to the time of such repeal or modification.
Any reference to an officer
of the Corporation in this Article IX- shall be deemed to refer exclusively to the Chief Executive Officer, the President and
the Secretary of the Corporation, or other officer of the Corporation appointed by (x) the Board pursuant to Article V- or (y)
an officer to whom the Board has delegated the power to appoint officers pursuant to Article V-, and any reference to an officer
of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be deemed to refer exclusively
to an officer appointed by the board of directors (or equivalent governing body) of such other entity pursuant to the certificate of
incorporation and bylaws (or equivalent organizational documents) of such other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise. The fact that any person who is or was an employee of the Corporation or an employee of any other corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise has been given or has used the title of “Vice President”
or any other title that could be construed to suggest or imply that such person is or may be an officer of the Corporation or of such
other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall not result in such person being
constituted as, or being deemed to be, an officer of the Corporation or of such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise for purposes of this Article IX-.
Article X - Amendments
The Board is expressly empowered
to adopt, amend or repeal the bylaws of the Corporation. The stockholders also shall have power to adopt, amend or repeal the bylaws
of the Corporation; provided, however, that such action by stockholders shall require, in addition to any other vote required
by the Certificate of Incorporation or applicable law, the affirmative vote of the holders of at least two-thirds of the voting power
of all the then-outstanding shares of voting stock of the Corporation with the power to vote generally in an election of directors, voting
together as a single class.
Article XI - Definitions
As used in these bylaws,
unless the context otherwise requires, the following terms shall have the following meanings:
An “electronic transmission”
means any form of communication, not directly involving the physical transmission of paper, including the use of, or participation in,
one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record
that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient
through an automated process.
An “electronic mail”
means an electronic transmission directed to a unique electronic mail address (which electronic mail shall be deemed to include any files
attached thereto and any information hyperlinked to a website if such electronic mail includes the contact information of an officer
or agent of the Corporation who is available to assist with accessing such files and information).
An “electronic mail
address” means a destination, commonly expressed as a string of characters, consisting of a unique user name or mailbox (commonly
referred to as the “local part” of the address) and a reference to an internet domain (commonly referred to as the “domain
part” of the address), whether or not displayed, to which electronic mail can be sent or delivered.
The term “person”
means any individual, general partnership, limited partnership, limited liability company, corporation, trust, business trust, joint
stock company, joint venture, unincorporated association, cooperative or association or any other legal entity or organization of whatever
nature, and shall include any successor (by merger or otherwise) of such entity.
AirJoule Technologies Corporation
Certificate of Amendment and Restatement
of Bylaws
The undersigned hereby certifies
that he is the duly elected and qualified Chief Legal Officer and Secretary of AirJoule Technologies Corporation, a Delaware corporation
(the “Corporation”), and that the attached bylaws are a true and correct copy of the bylaws of the Corporation in
effect as of the date of this certificate.
IN WITNESS WHEREOF, the undersigned
has hereunto set his hand this 13 day of November, 2024.
|
/s/ Chad W. MacDonald |
|
Name: |
Chad W. MacDonald |
|
Title: |
Chief Legal Officer and Secretary |
25
Exhibit 99.1
Montana
Technologies Announces Name Change to AirJoule Technologies
Ronan,
MT, November 13, 2024 – Montana Technologies Corporation (NASDAQ: AIRJ) the developer of the transformational AirJoule®
technology for atmospheric water harvesting, today announced that it has changed its corporate name to AirJoule Technologies Corporation
(“AirJoule Technologies” or the “Company”), effective immediately. The Company’s common stock and warrants
will continue to trade on the Nasdaq Capital Market under the ticker symbols “AIRJ” and “AIRJW”, respective; no
action is required by existing stockholders.
The AirJoule Technologies name better reflects
the Company’s position as the developer of AirJoule® –
the most advanced dehumidification and water harvesting technology in the market. The change also aligns the corporate name with AirJoule,
LLC, the Company’s 50/50 joint venture with GE Vernova to advance and commercialize atmospheric water harvesting products featuring
AirJoule® technology.
“While we’ll always have roots
in Montana, our new name provides greater alignment between our brand and the AirJoule® technology driving our vision of
addressing the world’s most urgent water needs,” said Matt Jore, CEO of AirJoule Technologies. “The development and
deployment of AirJoule®, and the immense value of our strategic partnerships, is core to our company identity. We believe
this change will enhance the Company’s visibility and create a stronger connection with customers, partners, and investors who share
our vision for a water-resilient future.”
The new corporate name will begin appearing immediately
in communications and on the Company’s new corporate website at https://airjouletech.com.
About
AirJoule Technologies Corporation
AirJoule Technologies Corporation (NASDAQ: AIRJ)
(formerly Montana Technologies Corporation) is the developer of AirJoule®, an atmospheric water harvesting technology
that provides efficient and sustainable air dehumidification and pure water from air. Designed to reduce energy consumption and generate
material cost efficiencies, AirJoule® is being commercialized through a joint venture with GE Vernova and through
partnerships with Carrier Global Corporation and BASF. For more information, visit https://airjouletech.com.
Contacts
AirJoule Technologies
Tom Divine – Vice President, Investor Relations
and Finance
investors@airjouletech.com (note new email
address)
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