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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): July 17, 2023
Priveterra Acquisition Corp. II
(Exact name of registrant as specified in its
charter)
Delaware |
001-39858 |
85-2478126 |
(State or other jurisdiction of |
(Commission |
(I.R.S. Employer |
incorporation or organization) |
File Number) |
Identification Number) |
1 Park Plaza |
|
Irvine, CA |
92614 |
(Address of principal executive offices) |
(Zip Code) |
Registrant’s telephone number, including
area code: (949) 787-2910
Not Applicable
(Former name or former address, if changed
since last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation to 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 |
Units, each consisting of one share
of Class A Common Stock and one-half of one Redeemable Warrant |
|
TMKRU |
|
The NASDAQ Stock Market LLC |
Class
A Common Stock, par value $0.0001 per share |
|
TMKR |
|
The NASDAQ Stock Market LLC |
Warrants, each exercisable for one
share of Class A Common Stock for $11.50 per share |
|
TMKRW |
|
The NASDAQ Stock Market LLC |
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 x
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 1.01 | Entry into a Material Definitive Agreement. |
On July 17, 2023, Priveterra Acquisition Corp.
II, a Delaware corporation (the “Company”), issued a promissory note (the “Note”) to Priveterra Sponsor, LLC II
(the “Sponsor”) in the principal amount of up to $2,000,000. The Note was issued in connection with advances the Sponsor has
made, and may make in the future, to the Company for working capital expenses. The loan bears interest at a rate of 16.00% and is payable
on the date on which the Company consummates its initial business combination. In the event that the Company fails to consummate an initial
business combination, the loan will be payable within fifteen (15) days of such failure to consummate. In addition, the Note provides
that the Company will pay the Sponsor $25,000 per month for certain office space, utilities, secretarial support and administrative services
as may be reasonably requested by the Company.
The issuance of the Note was made pursuant to the
exemption from registration contained in Section 4(a)(2) of the Securities Act of 1933, as amended.
The foregoing description is qualified
in its entirety by reference to the Note, a copy of which is attached as Exhibit 10.1 to this report and incorporated herein by reference.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The disclosure contained in Item 1.01
of this report is incorporated herein by reference.
Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On July 17, 2023, the board of directors of the
Company amended and restated the Company’s by laws (the “Amended and Restated By Laws,” effective immediately, to reflect
that the Company changed its name from “Tastemaker Acquisition Corp.” to “Priveterra Acquisition Corp. II”. A
copy of the Amended and Restated By Laws is attached as Exhibit 3.1 to this report and incorporated herein by reference.
On July 17, 2023, the Sponsor deposited $57,658.68
into the Company’s trust account in respect of 1,921,956 public shares outstanding following the redemption of shares in connection
with the special meeting of stockholders of the Company held on July 11, 2023. In connection
with the special meeting, stockholders holding an aggregate of 1,004,971 shares of the Company’s Class A common stock, par
value $0.0001 per share, exercised their right to redeem their shares for approximately $10.73 per share of the funds held in the Company’s
trust account, leaving approximately $20,616,541 in cash in the trust account after satisfaction of such redemptions and prior to the
deposit of the additional funds into the Company’s trust account.
Item 9.01 |
Financial Statements and Exhibits. |
(d) 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.
Dated: July 21, 2023 |
|
|
|
|
PRIVETERRA ACQUISITION CORP. II |
|
|
|
|
By: |
/s/ Oleg Grodnensky |
|
Name: |
Oleg Grodnensky |
|
Title: |
Chief Executive Officer |
Exhibit 3.1
AMENDED AND RESTATED
BY LAWS
OF
PRIVETERRA ACQUISITION CORP. II
(THE “CORPORATION”)
ARTICLE
I
OFFICES
Section 1.1. Registered
Office. The registered office of the Corporation within the State of Delaware shall be located at either (a) the principal
place of business of the Corporation in the State of Delaware or (b) the office of the corporation or individual acting as the Corporation’s
registered agent in Delaware.
Section 1.2. Additional
Offices. The Corporation may, in addition to its registered office in the State of Delaware, have such other offices and places
of business, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the “Board”)
may from time to time determine or as the business and affairs of the Corporation may require.
ARTICLE
II
STOCKHOLDERS MEETINGS
Section 2.1. Annual
Meetings. The annual meeting of stockholders shall be held at such place, either within or without the State of Delaware, and
time and on such date as shall be determined by the Board and stated in the notice of the meeting, provided that the Board may in its
sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication
pursuant to Section 9.5(a). At each 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.
Section 2.2. Special
Meetings. Subject to the rights of the holders of any outstanding series of the preferred stock of the Corporation (“Preferred
Stock”), and to the requirements of applicable law, special meetings of stockholders, for any purpose or purposes, may be
called only by the Chairman of the Board, or a Chief Executive Officer, or the Board pursuant to a resolution adopted by a majority of
the Board, and may not be called by any other person. Special meetings of stockholders shall be held at such place, either within or without
the State of Delaware, and at such time and on such date as shall be determined by the Board and stated in the Corporation’s notice
of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may
instead be held solely by means of remote communication pursuant to Section 9.5(a).
Section 2.3. Notices.
Written notice of each stockholders meeting stating the place, if any, date, and time of the meeting, and 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 the record date for
determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders
entitled to notice of the meeting, shall be given in the manner permitted by Section 9.3 to each stockholder entitled to vote thereat
as of the record date for determining the stockholders entitled to notice of the meeting, by the Corporation not less than 10 nor more
than 60 days before the date of the meeting unless otherwise required by the General Corporation Law of the State of Delaware (the “DGCL”).
If said notice is for a stockholders meeting other than an annual meeting, it shall in addition state the purpose or purposes for which
the meeting is called, and the business transacted at such meeting shall be limited to the matters so stated in the Corporation’s
notice of meeting (or any supplement thereto). Any meeting of stockholders as to which notice has been given may be postponed, and any
meeting of stockholders as to which notice has been given may be cancelled, by the Board upon public announcement (as defined in Section
2.7(c)) given before the date previously scheduled for such meeting.
Section 2.4. Quorum.
Except as otherwise provided by applicable law, the Corporation’s Certificate of Incorporation, as the same may be amended or
restated from time to time (the “Certificate of Incorporation”) or these By Laws, the presence, in person
or by proxy, at a stockholders meeting of the holders of shares of outstanding capital stock of the Corporation representing a
majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting shall
constitute a quorum for the transaction of business at such meeting, except that when specified business is to be voted on by a
class or series of stock voting as a class, the holders of shares representing a majority of the voting power of the outstanding
shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. If a quorum
shall not be present or represented by proxy at any meeting of the stockholders of the Corporation, the chairman of the meeting may
adjourn the meeting from time to time in the manner provided in Section 2.6 until a quorum shall attend. The stockholders
present at a duly convened meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation or to another corporation, if a
majority of the voting power of the shares entitled to vote in the election of directors of such other corporation is held, directly
or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the
foregoing shall not limit the right of the Corporation or any such other corporation to vote shares held by it in a fiduciary
capacity.
Section 2.5. Voting
of Shares.
(a) Voting
Lists. The Secretary of the Corporation (the “Secretary”) shall prepare, or shall cause the officer
or agent who has charge of the stock ledger of the Corporation to prepare and make, at least 10 days before every meeting of stockholders,
a complete list of the stockholders of record entitled to vote at such meeting; provided, however, that if the record date for determining
the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote
as of the tenth day before the meeting date, arranged in alphabetical order and showing the address and the number and class of shares
registered in the name of each stockholder. Nothing contained in this Section 2.5(a) shall require the Corporation 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, during ordinary business hours for a period of at least 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 principal place of business of the Corporation. 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 a meeting of stockholders
is to be held solely by means of remote communication as permitted by Section 9.5(a), the list shall be open to the 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 meeting. The stock ledger shall be the only evidence as to who are the stockholders entitled
to examine the list required by this Section 2.5(a) or to vote in person or by proxy at any meeting of stockholders.
(b) Manner
of Voting. At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized by
the Board, the voting by stockholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot submitted
by electronic transmission (as defined in Section 9.3), provided that any such electronic transmission must either set forth or
be submitted with information from which the Corporation can determine that the electronic transmission was authorized by the stockholder
or proxy holder. The Board, in its discretion, or the chairman of the meeting of stockholders, in such person’s discretion, may
require that any votes cast at such meeting shall be cast by written ballot.
(c) Proxies.
Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without
a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon
after three years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the Secretary until the
meeting is called to order, but shall be filed with the Secretary before being voted. Without limiting the manner in which a stockholder
may authorize another person or persons to act for such stockholder as proxy, either of the following shall constitute a valid means by
which a stockholder may grant such authority. No stockholder shall have cumulative voting rights.
(i) A stockholder may execute a writing authorizing
another person or persons to act for such stockholder as proxy. Execution may be accomplished by the stockholder or such stockholder’s
authorized officer, director, employee or agent signing such writing or causing such person’s signature to be affixed to such writing
by any reasonable means, including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or
persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission to the person
who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized
by the person who will be the holder of the proxy to receive such transmission, provided that any such electronic transmission must either
set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another person or persons
to act as proxy for a stockholder may be substituted or used in lieu of the original writing or transmission for any and all purposes
for which the original writing or transmission could be used; provided that such copy, facsimile telecommunication or other reproduction
shall be a complete reproduction of the entire original writing or transmission.
(d) Required
Vote. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately by class or series,
to elect directors pursuant to the terms of one or more series of Preferred Stock, at all meetings of stockholders at which a quorum is
present, the election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented
by proxy at the meeting and entitled to vote thereon. All other matters presented to the stockholders at a meeting at which a quorum is
present shall be determined by the vote of a majority of the votes cast by the stockholders present in person or represented by proxy
at the meeting and entitled to vote thereon, unless the matter is one upon which, by applicable law, the Certificate of Incorporation,
these By Laws or applicable stock exchange rules, a different vote is required, in which case such provision shall govern and control
the decision of such matter.
(e) Inspectors
of Election. The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons
as inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such
meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board may appoint one or more persons as
alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed by the Board,
the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her
duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of
his or her ability. The inspectors shall ascertain and report the number of outstanding shares and the voting power of each; determine
the number of shares present in person or represented by proxy at the meeting and the validity of proxies and ballots; count all votes
and ballots and report the results; determine and retain for a reasonable period a record of the disposition of any challenges made to
any determination by the inspectors; and certify their determination of the number of shares represented at the meeting and their count
of all votes and ballots. No person who is a candidate for an office at an election may serve as an inspector at such election. Each report
of an inspector shall be in writing and signed by the inspector or by a majority of them if there is more than one inspector acting at
such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors.
Section 2.6. Adjournments.
Any meeting of stockholders, annual or special, may be adjourned by the chairman of the meeting, from time to time, whether or not there
is a quorum, to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if the date, time, and
place, if any, thereof, and 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 adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting
the stockholders, or the holders of any class or series of stock entitled to vote separately as a class, as the case may be, may transact
any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, 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 stockholders
entitled to vote is fixed for the adjourned meeting, the Board shall fix a new record date for notice of such adjourned meeting in accordance
with Section 9.2, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned
meeting as of the record date fixed for notice of such adjourned meeting.
Section 2.7. Advance Notice for Business.
(a) Annual
Meetings of Stockholders. No business may be transacted at an annual meeting of stockholders, other than business that is either
(i) specified in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii)
otherwise properly brought before the annual meeting by or at the direction of the Board or (iii) otherwise properly brought before the
annual meeting by any stockholder of the Corporation (x) who is a stockholder of record entitled to vote at such annual meeting on the
date of the giving of the notice provided for in this Section 2.7(a) and on the record date for the determination of stockholders
entitled to vote at such annual meeting and (y) who complies with the notice procedures set forth in this Section 2.7(a). Notwithstanding
anything in this Section 2.7(a) to the contrary, only persons nominated for election as a director to fill any term of a directorship
that expires on the date of the annual meeting pursuant to Section 3.2 will be considered for election at such meeting.
(i) In addition to any other applicable requirements,
for business (other than nominations) to be properly brought before an annual meeting by a stockholder, such stockholder must have given
timely notice thereof in proper written form to the Secretary and such business must otherwise be a proper matter for stockholder action.
Subject to Section 2.7(a)(iii), a stockholder’s notice to the Secretary with respect to such business, to be timely, must
be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 90th day
nor earlier than the close of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders;
provided, however, that in the event that the annual meeting is more than 30 days before or more than 60 days after such anniversary date
(or if there has been no prior annual meeting), notice by the stockholder to be timely must be so delivered not earlier than the close
of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting
or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first
made by the Corporation. The public announcement of an adjournment or postponement of an annual meeting shall not commence a new time
period (or extend any time period) for the giving of a stockholder’s notice as described in this Section 2.7(a).
(ii) To be in proper written form, a stockholder’s
notice to the Secretary with respect to any business (other than nominations) must set forth as to each such matter such stockholder proposes
to bring before the annual meeting (A) a brief description of the business desired to be brought before the annual meeting, the text of
the proposal or business (including the text of any resolutions proposed for consideration and in the event such business includes a proposal
to amend these By Laws, the language of the proposed amendment) and the reasons for conducting such business at the annual meeting, (B)
the name and record address of such stockholder and the name and address of the beneficial owner, if any, on whose behalf the proposal
is made, (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by
such stockholder and by the beneficial owner, if any, on whose behalf the proposal is made, (D) a description of all arrangements or understandings
between such stockholder and the beneficial owner, if any, on whose behalf the proposal is made and any other person or persons (including
their names) in connection with the proposal of such business by such stockholder, (E) any material interest of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made in such business and (F) a representation that such stockholder (or a qualified
representative of such stockholder) intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.
(iii) The foregoing notice requirements of this Section
2.7(a) shall be deemed satisfied by a stockholder as to any proposal (other than nominations) if the stockholder has notified
the Corporation of such stockholder’s intention to present such proposal at an annual meeting in compliance with Rule 14a-8
(or any successor thereof) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and
such stockholder has complied with the requirements of such Rule for inclusion of such proposal in a proxy statement prepared by the
Corporation to solicit proxies for such annual meeting. No business shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting in accordance with the procedures set forth in this Section 2.7(a), provided,
however, that once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section
2.7(a) shall be deemed to preclude discussion by any stockholder of any such business. If the Board or the chairman of the
annual meeting determines that any stockholder proposal was not made in accordance with the provisions of this Section 2.7(a)
or that the information provided in a stockholder’s notice does not satisfy the information requirements of this Section
2.7(a), such proposal shall not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this Section
2.7(a), if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of
stockholders of the Corporation to present the proposed business, such proposed business shall not be transacted, notwithstanding
that proxies in respect of such matter may have been received by the Corporation.
(iv) In addition to the provisions of this Section
2.7(a), a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder
with respect to the matters set forth herein. Nothing in this Section 2.7(a) shall be deemed to affect any rights of stockholders
to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(b) Special
Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought
before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made
at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only pursuant
to Section 3.2.
(c) Public
Announcement. For purposes of these By Laws, “public announcement” shall mean disclosure in a press
release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed or
furnished by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act (or
any successor thereto).
Section 2.8. Conduct
of Meetings. The chairman of each annual and special meeting of stockholders shall be the Chairman of the Board or, in the
absence (or inability or refusal to act) of the Chairman of the Board, any Chief Executive Officer (if he or she shall be a director)
or, in the absence (or inability or refusal to act of a Chief Executive Officer or if a Chief Executive Officer is not a director, the
President (if he or she shall be a director) or, in the absence (or inability or refusal to act) of the President or if the President
is not a director, such other person as shall be appointed by the Board. 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 chairman of the meeting. The
Board may adopt such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the
extent inconsistent with these By Laws or such rules and regulations as adopted by the Board, the chairman of any meeting of stockholders
shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do
all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or
procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following:
(a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting
and the safety of those present; (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation,
their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (d) restrictions on
entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments
by participants. Unless and to the extent determined by the Board or the chairman of the meeting, meetings of stockholders shall not be
required to be held in accordance with the rules of parliamentary procedure. The secretary of each annual and special meeting of stockholders
shall be the Secretary or, in the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary so appointed to act
by the chairman of the meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman
of the meeting may appoint any person to act as secretary of the meeting.
Section 2.9. Consents
in Lieu of Meeting. Unless otherwise provided by the Certificate of Incorporation, until the Corporation consummates an initial
public offering (“Offering”), any action required to be taken at any annual or special meeting of stockholders,
or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior
notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock
entitled to vote thereon 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 by delivery to
its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office
shall be by hand or by certified or registered mail, return receipt requested.
Every written consent shall
bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective to take the corporate
action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this section and the
DGCL to the Corporation, written consents signed by a sufficient number of holders entitled to vote to take action are delivered to the
Corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered
office shall be by hand or by certified or registered mail, return receipt requested.
ARTICLE
III
DIRECTORS
Section 3.1. Powers;
Number. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise
all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation
or by these By Laws required to be exercised or done by the stockholders. Directors need not be stockholders or residents of the State
of Delaware. Subject to the Certificate of Incorporation, the number of directors shall be fixed exclusively by resolution of the Board.
Section 3.2. Advance
Notice for Nomination of Directors.
(a) Only persons who are nominated in accordance
with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided by the
terms of one or more series of Preferred Stock with respect to the rights of holders of one or more series of Preferred Stock to elect
directors. Nominations of persons for election to the Board at any annual meeting of stockholders, or at any special meeting of stockholders
called for the purpose of electing directors as set forth in the Corporation’s notice of such special meeting, may be made (i) by
or at the direction of the Board or (ii) by any stockholder of the Corporation (x) who is a stockholder of record entitled to vote in
the election of directors on the date of the giving of the notice provided for in this Section 3.2 and on the record date for the
determination of stockholders entitled to vote at such meeting and (y) who complies with the notice procedures set forth in this Section
3.2.
(b) In addition to any other applicable requirements,
for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary.
To be timely, a stockholder’s notice to the Secretary must be received by the Secretary at the principal executive offices of the
Corporation (i) in the case of an annual meeting, not later than the close of business on the 90th day nor earlier than the close of business
on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the
event that the annual meeting is more than 30 days before or more than 60 days after such anniversary date (or if there has been no prior
annual meeting), notice by the stockholder to be timely must be so received not earlier than the close of business on the 120th day before
the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business
on the 10th day following the day on which public announcement of the date of the annual meeting was first made by the Corporation; and
(ii) in the case of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business
on the 10th day following the day on which public announcement of the date of the special meeting is first made by the Corporation. In
no event shall the public announcement of an adjournment or postponement of an annual meeting or special meeting commence a new time period
(or extend any time period) for the giving of a stockholder’s notice as described in this Section 3.2.
(c) Notwithstanding
anything in paragraph (b) to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting is
greater than the number of directors whose terms expire on the date of the annual meeting and there is no public announcement by the Corporation
naming all of the nominees for the additional directors to be elected or specifying the size of the increased Board before the close of
business on the 90th day prior to the anniversary date of the immediately preceding annual meeting of stockholders, a stockholder’s
notice required by this Section 3.2 shall also be considered timely, but only with respect to nominees for the additional directorships
created by such increase that are to be filled by election at such annual meeting, if it shall be received by the Secretary at the principal
executive offices of the Corporation not later than the close of business on the 10th day following the date on which such public announcement
was first made by the Corporation.
(d) To be in proper written form, a stockholder’s
notice to the Secretary must set forth (i) as to each person whom the stockholder proposes to nominate for election as a director (A)
the name, age, business address and residence address of the person, (B) the principal occupation or employment of the person, (C) the
class or series and number of shares of capital stock of the Corporation that are owned beneficially or of record by the person and (D)
any other information relating to the person that would be 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 pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder; and (ii) as to the stockholder giving the notice (A) the name and record address of such stockholder
as they appear on the Corporation’s books and the name and address of the beneficial owner, if any, on whose behalf the nomination
is made, (B) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by
such stockholder and the beneficial owner, if any, on whose behalf the nomination is made, (C) a description of all arrangements or understandings
relating to the nomination to be made by such stockholder among such stockholder, the beneficial owner, if any, on whose behalf the nomination
is made, each proposed nominee and any other person or persons (including their names), (D) a representation that such stockholder (or
a qualified representative of such stockholder) intends to appear in person or by proxy at the meeting to nominate the persons named in
its notice and (E) any other information relating to such stockholder and the beneficial owner, if any, on whose behalf the nomination
is made that would be 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 pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder.
Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if
elected.
(e) If the Board or the chairman of the meeting
of stockholders determines that any nomination was not made in accordance with the provisions of this Section 3.2, or that the
information provided in a stockholder’s notice does not satisfy the information requirements of this Section 3.2, then such
nomination shall not be considered at the meeting in question. Notwithstanding the foregoing provisions of this Section 3.2, if
the stockholder (or a qualified representative of the stockholder) does not appear at the meeting of stockholders of the Corporation to
present the nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may have been
received by the Corporation.
(f) In addition to the provisions of this Section
3.2, a stockholder shall also comply with all of the applicable requirements of the Exchange Act and the rules and regulations thereunder
with respect to the matters set forth herein. Nothing in this Section 3.2 shall be deemed to affect any rights of the holders of
Preferred Stock to elect directors pursuant to the Certificate of Incorporation.
Section 3.3. Compensation.
Unless otherwise restricted by the Certificate of Incorporation or these By Laws, the Board shall have the authority to fix the compensation
of directors, including for service on a committee of the Board, and may be paid either a fixed sum for attendance at each meeting of
the Board or other compensation as director. The directors may be reimbursed their expenses, if any, of attendance at each meeting of
the Board. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor.
Members of committees of the Board may be allowed like compensation and reimbursement of expenses for service on the committee.
ARTICLE
IV
BOARD MEETINGS
Section 4.1. Annual
Meetings. The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place
of the annual stockholders meeting unless the Board shall fix another time and place and give notice thereof in the manner required herein
for special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except as provided in
this Section 4.1.
Section 4.2. Regular
Meetings. Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places (within
or without the State of Delaware) as shall from time to time be determined by the Board.
Section 4.3. Special Meetings. Special
meetings of the Board (a) may be called by the Chairman of the Board or President and (b) shall be called by the Chairman of the Board,
President or Secretary on the written request of at least a majority of directors then in office, or the sole director, as the case may
be, and shall be held at such time, date and place (within or without the State of Delaware) as may be determined by the person calling
the meeting or, if called upon the request of directors or the sole director, as specified in such written request. Notice of each special
meeting of the Board shall be given, as provided in Section 9.3, to each director (i) at least 24 hours before the meeting if
such notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of a form of electronic
transmission and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally recognized overnight delivery
service; and (iii) at least five days before the meeting if such notice is sent through the United States mail. If the Secretary shall
fail or refuse to give such notice, then the notice may be given by the officer who called the meeting or the directors who requested
the meeting. Any and all business that may be transacted at a regular meeting of the Board may be transacted at a special meeting. Except
as may be otherwise expressly provided by applicable law, the Certificate of Incorporation, or these By Laws, neither the business to
be transacted at, nor the purpose of, any special meeting need be specified in the notice or waiver of notice of such meeting. A special
meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in
accordance with Section 9.4.
Section 4.4. Quorum;
Required Vote. A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board,
and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as
may be otherwise specifically provided by applicable law, the Certificate of Incorporation or these By Laws. If a quorum shall not be
present at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present.
Section 4.5. Consent
In Lieu of Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By Laws, any action required or
permitted to be taken at any meeting of the Board or 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, and the writing or writings or electronic
transmission or transmissions (or paper reproductions thereof) are filed with the minutes of proceedings of the Board or committee. Such
filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained
in electronic form.
Section 4.6. Organization.
The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the
Chairman of the Board, any Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to act)
of a Chief Executive Officer or if a Chief Executive Officer is not a director, the President (if he or she shall be a director) or in
the absence (or inability or refusal to act) of the President or if the President is not a director, a chairman elected from the directors
present. The Secretary shall act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of the Secretary,
an Assistant Secretary shall perform the duties of the Secretary at such meeting. In the absence (or inability or refusal to act) of the
Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
ARTICLE
V
COMMITTEES OF DIRECTORS
Section 5.1. Establishment.
The Board may by resolution of the Board designate one or more committees, each committee to consist of one or more of the directors of
the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when required by the resolution
designating such committee. The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve
any such committee.
Section 5.2. Available
Powers. Any committee established pursuant to Section 5.1 hereof, to the extent permitted by applicable law and by resolution
of the Board, shall have and may exercise all of 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.
Section 5.3. Alternate Members. The Board
may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting
of such committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board
to act at the meeting in place of any such absent or disqualified member.
Section 5.4. Procedures.
Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by such
committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate member, unless
such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such meeting) shall constitute
a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall
be the act of the committee, except as otherwise specifically provided by applicable law, the Certificate of Incorporation, these By Laws
or the Board. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without
notice other than an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and except as provided
in these By Laws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of its business. In the
absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to conduct its business
pursuant to Article III and Article IV of these By Laws.
ARTICLE
VI
OFFICERS
Section 6.1. Officers.
The officers of the Corporation elected by the Board shall be one or more Chief Executive Officers, a Chief Financial Officer, a Secretary
and such other officers (including without limitation, a Chairman of the Board, Presidents, Vice Presidents, Assistant Secretaries and
a Treasurer) as the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties as generally
pertain to their respective offices, subject to the specific provisions of this Article VI. Such officers shall also have such
powers and duties as from time to time may be conferred by the Board. Any Chief Executive Officer or President may also appoint such other
officers (including without limitation one or more Vice Presidents and Controllers) as may be necessary or desirable for the conduct of
the business of the Corporation. Such other officers shall have such powers and duties and shall hold their offices for such terms as
may be provided in these By Laws or as may be prescribed by the Board or, if such officer has been appointed by any Chief Executive Officer
or President, as may be prescribed by the appointing officer.
(a) Chairman
of the Board. The Chairman of the Board shall preside when present at all meetings of the stockholders and the Board. The Chairman
of the Board shall have general supervision and control of the acquisition activities of the Corporation subject to the ultimate authority
of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters. In the absence (or
inability or refusal to act) of the Chairman of the Board, any Chief Executive Officer (if he or she shall be a director) shall preside
when present at all meetings of the stockholders and the Board. The powers and duties of the Chairman of the Board shall not include supervision
or control of the preparation of the financial statements of the Corporation (other than through participation as a member of the Board).
The position of Chairman of the Board and Chief Executive Officer may be held by the same person and may be held by more than one person.
(b) Chief
Executive Officer. One or more Chief Executive Officers shall be the chief executive officer(s) of the Corporation, shall have
general supervision of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of
the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters, except to the extent
any such powers and duties have been prescribed to the Chairman of the Board pursuant to Section 6.1(a) above. In the absence (or
inability or refusal to act) of the Chairman of the Board, any Chief Executive Officer (if he or she shall be a director) shall preside
when present at all meetings of the stockholders and the Board. The position of Chief Executive Officer and President may be held by the
same person and may be held by more than one person.
(c) President.
The President shall make recommendations to any Chief Executive Officer on all operational matters that would normally be reserved for
the final executive responsibility of any Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairman of
the Board and a Chief Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings of
the stockholders and the Board. The President shall also perform such duties and have such powers as shall be designated by the Board.
The position of President and Chief Executive Officer may be held by the same person.
(d) Vice
Presidents. In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there be
more than one Vice President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of
the President. Any one or more of the Vice Presidents may be given an additional designation of rank or function.
(e) Secretary.
(i) The Secretary shall attend all meetings of the
stockholders, the Board and (as required) committees of the Board and shall record the proceedings of such meetings in books to be kept
for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the
Board and shall perform such other duties as may be prescribed by the Board, the Chairman of the Board, any Chief Executive Officer or
President. The Secretary shall have custody of the corporate seal of the Corporation and the Secretary, or any Assistant Secretary, shall
have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested by his or her signature or by
the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Corporation
and to attest the affixing thereof by his or her signature.
(ii) The Secretary shall keep, or cause to be kept,
at the principal executive office of the Corporation or at the office of the Corporation’s transfer agent or registrar, if one has
been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders and their addresses, the number and classes
of shares held by each and, with respect to certificated shares, the number and date of certificates issued for the same and the number
and date of certificates cancelled.
(f) Assistant
Secretaries. The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the
Board shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g) Chief
Financial Officer. The Chief Financial Officer shall perform all duties commonly incident to that office (including, without
limitation, the care and custody of the funds and securities of the Corporation, which from time to time may come into the Chief Financial
Officer’s hands and the deposit of the funds of the Corporation in such banks or trust companies as the Board, any Chief Executive
Officer or the President may authorize).
(h) Treasurer.
The Treasurer shall, in the absence (or inability or refusal to act) of the Chief Financial Officer, perform the duties and exercise the
powers of the Chief Financial Officer.
Section 6.2. Term
of Office; Removal; Vacancies. The elected officers of the Corporation shall be appointed by the Board and shall hold office
until their successors are duly elected and qualified by the Board or until their earlier death, resignation, retirement, disqualification,
or removal from office. Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by any Chief
Executive Officer or President may also be removed, with or without cause, by any Chief Executive Officer or President, as the case may
be, unless the Board otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled by the Board. Any
vacancy occurring in any office appointed by any Chief Executive Officer or President may be filled by any Chief Executive Officer, or
President, as the case may be, unless the Board then determines that such office shall thereupon be elected by the Board, in which case
the Board shall elect such officer.
Section 6.3. Other
Officers. The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and
agents or delegate the power to remove same, as it shall from time to time deem necessary or desirable.
Section 6.4. Multiple Officeholders; Stockholder
and Director Officers. Any number of offices may be held by the same person unless the Certificate of Incorporation or these By Laws
otherwise provide. Officers need not be stockholders or residents of the State of Delaware.
ARTICLE
VII
SHARES
Section 7.1. Certificated
and Uncertificated Shares. The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion
of the Board and the requirements of the DGCL.
Section 7.2. Multiple
Classes of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any
class, the Corporation shall (a) cause the powers, designations, preferences and 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 to be set
forth in full or summarized on the face or back of any certificate that the Corporation issues to represent shares of such class or series
of stock or (b) in the case of uncertificated shares, within a reasonable time after the issuance or transfer of such shares, send to
the registered owner thereof a written notice containing the information required to be set forth on certificates as specified in clause
(a) above; provided, however, that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there may be
set forth on the face or back of such certificate or, in the case of uncertificated shares, on such written notice a statement that the
Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such
preferences or rights.
Section 7.3. Signatures.
Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by (a) the Chairman
of the Board, any Chief Executive Officer, the President or a Vice President and (b) the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Corporation. Any or all 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 shall have ceased to be such officer,
transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar on the date of issue.
Section 7.4. Consideration
and Payment for Shares.
(a) Subject
to applicable law and the Certificate of Incorporation, shares of stock may be issued for such consideration, having in the case of shares
with par value a value not less than the par value thereof, and to such persons, as determined from time to time by the Board.
The consideration may consist of any tangible or intangible property or any benefit to the Corporation including cash, promissory notes,
services performed, contracts for services to be performed or other securities, or any combination thereof.
(b) Subject
to applicable law and the Certificate of Incorporation, shares may not be issued until the full amount of the consideration has been paid,
unless upon the face or back of each certificate issued to represent any partly paid shares of capital stock or upon the books and records
of the Corporation in the case of partly paid uncertificated shares, there shall have been set forth the total amount of the consideration
to be paid therefor and the amount paid thereon up to and including the time said certificate representing certificated shares or said
uncertificated shares are issued.
Section 7.5. Lost,
Destroyed or Wrongfully Taken Certificates.
(a) If
an owner of a certificate representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the
Corporation shall issue a new certificate representing such shares or such shares in uncertificated form if the owner: (i) requests
such a new certificate before the Corporation has notice that the certificate representing such shares has been acquired by a
protected purchaser; (ii) if requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the
Corporation against any claim that may be made against the Corporation on account of the alleged loss, wrongful taking or
destruction of such certificate or the issuance of such new certificate or uncertificated shares; and (iii) satisfies other
reasonable requirements imposed by the Corporation.
(b) If
a certificate representing shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation
of that fact within a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation
registers a transfer of such shares before receiving notification, the owner shall be precluded from asserting against the Corporation
any claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.
Section 7.6. Transfer
of Stock.
(a) If
a certificate representing shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of
transfer of such shares or an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares,
the Corporation shall register the transfer as requested if:
(i) in the case of certificated shares, the certificate
representing such shares has been surrendered;
(ii) (A) with respect to certificated shares, the
endorsement is made by the person specified by the certificate as entitled to such shares; (B) with respect to uncertificated shares,
an instruction is made by the registered owner of such uncertificated shares; or (C) with respect to certificated shares or uncertificated
shares, the endorsement or instruction is made by any other appropriate person or by an agent who has actual authority to act on behalf
of the appropriate person;
(iii) the Corporation has received a guarantee of
signature of the person signing such endorsement or instruction or such other reasonable assurance that the endorsement or instruction
is genuine and authorized as the Corporation may request;
(iv) the transfer does not violate any restriction
on transfer imposed by the Corporation that is enforceable in accordance with Section 7.8(a); and
(v) such other conditions for such transfer as shall
be provided for under applicable law have been satisfied.
(b) Whenever
any transfer of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry
of transfer if, when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated,
when the instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request
the Corporation to do so.
Section 7.7. Registered
Stockholders. Before due presentment for registration of transfer of a certificate representing shares of the Corporation or
of an instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner as the
person exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation, vote
such shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers of the owner
of such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee on behalf of
such person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying such other conditions as are
provided under applicable law, may also so inspect the books and records of the Corporation.
Section 7.8. Effect
of the Corporation’s Restriction on Transfer.
(a) A written restriction on the transfer or
registration of transfer of shares of the Corporation or on the amount of shares of the Corporation that may be owned by any person
or group of persons, if permitted by the DGCL and noted conspicuously on the certificate representing such shares or, in the case of
uncertificated shares, contained in a notice, offering circular or prospectus sent by the Corporation to the registered owner of
such shares within a reasonable time prior to or after the issuance or transfer of such shares, may be enforced against the holder
of such shares or any successor or transferee of the holder including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the holder.
(b) A restriction imposed by the Corporation on
the transfer or the registration of shares of the Corporation or on the amount of shares of the Corporation that may be owned by any person
or group of persons, even if otherwise lawful, is ineffective against a person without actual knowledge of such restriction unless: (i)
the shares are certificated and such restriction is noted conspicuously on the certificate; or (ii) the shares are uncertificated and
such restriction was contained in a notice, offering circular or prospectus sent by the Corporation to the registered owner of such shares
within a reasonable time prior to or after the issuance or transfer of such shares.
Section 7.9. Regulations.
The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of law,
as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares of stock or
certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for the validity thereof
that certificates representing shares bear the signature of any transfer agent or registrar so appointed.
ARTICLE
VIII
INDEMNIFICATION
Section 8.1. Right
to Indemnification. To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the
Corporation shall indemnify and hold harmless each person who was or is made a party or is threatened to be made a party to or is otherwise
involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or officer of the Corporation
or, while 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, joint venture, trust, other enterprise or nonprofit entity, including service with
respect to an employee benefit plan (hereinafter an “Indemnitee”), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer,
employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments,
fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such
proceeding; provided, however, that, except as provided in Section 8.3 with respect to proceedings to enforce rights to indemnification,
the Corporation shall indemnify an Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such
proceeding (or part thereof) was authorized by the Board.
Section 8.2. Right
to Advancement of Expenses. In addition to the right to indemnification conferred in Section 8.1, an Indemnitee shall
also have the right to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including, without
limitation, attorneys’ fees) incurred in defending or otherwise participating in any such proceeding in advance of its final disposition
(hereinafter an “advancement of expenses”); provided, however, that, if the DGCL requires, an advancement of
expenses incurred by an Indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in
which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made
only upon the Corporation’s receipt of an undertaking (hereinafter an “undertaking”), by or on behalf
of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified
under this Article VIII or otherwise.
Section 8.3. Right
of Indemnitee to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not paid in full by the
Corporation within 60 days after a written claim therefor has been received by the Corporation, except in the case of a claim for an
advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall also
be entitled to be paid the expense of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee to enforce a
right to indemnification hereunder (but not in a suit brought by an Indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (b) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the Corporation shall be entitled to recover such expenses upon a final judicial decision from which there is no
further right to appeal (hereinafter a “final adjudication”) that, the Indemnitee has not met any
applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who
are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because
the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation
(including a determination by its directors who are not parties to such action, a committee of such directors, independent legal
counsel, or its stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that
the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, shall be a
defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses
hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or
otherwise shall be on the Corporation.
Section 8.4. Non-Exclusivity
of Rights. The rights provided to any Indemnitee pursuant to this Article VIII shall not be exclusive of any other right,
which such Indemnitee may have or hereafter acquire under applicable law, the Certificate of Incorporation, these By Laws, an agreement,
a vote of stockholders or disinterested directors, or otherwise.
Section 8.5. Insurance.
The Corporation may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Section 8.6. Indemnification
of Other Persons. This Article VIII shall not limit the right of the Corporation to the extent and in the manner authorized
or permitted by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting the foregoing, the Corporation
may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any
employee or agent of the Corporation and to any other person who is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect
to an employee benefit plan, to the fullest extent of the provisions of this Article VIII with respect to the indemnification and
advancement of expenses of Indemnitees under this Article VIII.
Section 8.7. Amendments.
Any repeal or amendment of this Article VIII by the Board or the stockholders of the Corporation or by changes in applicable law,
or the adoption of any other provision of these By Laws inconsistent with this Article VIII, will, to the extent permitted by applicable
law, be prospective only (except to the extent such amendment or change in applicable law permits the Corporation to provide broader indemnification
rights to Indemnitees on a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely affect any right
or protection existing hereunder in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent
provision; provided however, that amendments or repeals of this Article VIII shall require the affirmative vote of the stockholders
holding at least 66.7% of the voting power of all outstanding shares of capital stock of the Corporation.
Section 8.8. Certain
Definitions. For purposes of this Article VIII, (a) references to “other enterprise” shall
include any employee benefit plan; (b) references to “fines” shall include any excise taxes assessed on a person
with respect to an employee benefit plan; (c) references to “serving at the request of the Corporation” shall
include any service that imposes duties on, or involves services by, a person with respect to any employee benefit plan, its participants,
or beneficiaries; and (d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interest
of the Corporation” for purposes of Section 145 of the DGCL.
Section 8.9. Contract
Rights. The rights provided to Indemnitees pursuant to this Article VIII shall be contract rights and such rights shall
continue as to an Indemnitee who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the Indemnitee’s
heirs, executors and administrators.
Section 8.10. Severability. If any provision
or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity,
legality and enforceability of the remaining provisions of this Article VIII shall not in any way be affected or impaired thereby;
and (b) to the fullest extent possible, the provisions of this Article VIII (including, without limitation, each such portion
of this Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE
IX
MISCELLANEOUS
Section 9.1. Place
of Meetings. If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required
under these By Laws is not designated in the notice of such meeting, such meeting shall be held at the principal business office of the
Corporation; provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at any place, but
instead shall be held by means of remote communication pursuant to Section 9.5 hereof, then such meeting shall not be held at any
place.
Section 9.2. Fixing
Record Dates.
(a) In order that the Corporation may determine
the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which
shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be
more than 60 nor less than 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 and to vote at a meeting of stockholders shall be at the
close of business on the business day next preceding the day on which notice is given, or, if notice is waived, at the close of business
on the business 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 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 with the
foregoing provisions of this Section 9.2(a) at the adjourned meeting.
(b) In order that the Corporation may determine
the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled
to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose 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 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.
Section 9.3. Means
of Giving Notice.
(a) Notice
to Directors. Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be
given to any director, such notice shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery
service, (ii) by means of facsimile telecommunication or other form of electronic transmission, or (iii) by oral notice given
personally or by telephone. A notice to a director will be deemed given as follows: (i) if given by hand delivery, orally, or by
telephone, when actually received by the director, (ii) if sent through the United States mail, when deposited in the United States
mail, with postage and fees thereon prepaid, addressed to the director at the director’s address appearing on the records of
the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such
service, with fees thereon prepaid, addressed to the director at the director’s address appearing on the records of the
Corporation, (iv) if sent by facsimile telecommunication, when sent to the facsimile transmission number for such director appearing
on the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic mail address for such director
appearing on the records of the Corporation, or (vi) if sent by any other form of electronic transmission, when sent to the address,
location or number (as applicable) for such director appearing on the records of the Corporation.
(b) Notice
to Stockholders. Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be
given to any stockholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or
by a nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented
to by the stockholder, to the extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL. A notice to a stockholder
shall be deemed given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if sent through the United
States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the stockholder at the stockholder’s
address appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery
service, when deposited with such service, with fees thereon prepaid, addressed to the stockholder at the stockholder’s address
appearing on the stock ledger of the Corporation, and (iv) if given by a form of electronic transmission consented to by the stockholder
to whom the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile transmission, when directed to
a number at which the stockholder has consented to receive notice, (B) if by electronic mail, when directed to an electronic mail address
at which the stockholder has consented to receive notice, (C) if by a posting on an electronic network together with separate notice to
the stockholder of such specified posting, upon the later of (1) such posting and (2) the giving of such separate notice, and (D) if by
any other form of electronic transmission, when directed to the stockholder. A stockholder may revoke such stockholder’s consent
to receiving notice by means of electronic communication by giving written notice of such revocation to the Corporation. Any such consent
shall be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation
in accordance with such consent and (2) such inability becomes known to the Secretary or an Assistant Secretary or to the Corporation’s
transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability
as a revocation shall not invalidate any meeting or other action.
(c) Electronic
Transmission. “Electronic transmission” means any form of communication, not directly involving the
physical transmission of paper, 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, including but not limited to transmission by telex,
facsimile telecommunication, electronic mail, telegram and cablegram.
(d) Notice
to Stockholders Sharing Same Address. Without limiting the manner by which notice otherwise may be given effectively by the
Corporation to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation
or these By Laws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders
at that address to whom such notice is given. A stockholder may revoke such stockholder’s consent by delivering written notice of
such revocation to the Corporation. Any stockholder who fails to object in writing to the Corporation within 60 days of having been given
written notice by the Corporation of its intention to send such a single written notice shall be deemed to have consented to receiving
such single written notice.
(e) Exceptions
to Notice Requirements. Whenever notice is required to be given, under the DGCL, the Certificate of Incorporation or these
By Laws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall
be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or
meeting that shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and
effect as if such notice had been duly given. In the event that the action taken by the Corporation is such as to require the filing of
a certificate with the Secretary of State of Delaware, the certificate shall state, if such is the fact and if notice is required, that
notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.
Whenever notice is
required to be given by the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these By Laws, to any
stockholder to whom (1) notice of two consecutive annual meetings of stockholders and all notices of stockholder meetings or of the
taking of action by written consent of stockholders without a meeting to such stockholder during the period between such two
consecutive annual meetings, or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on
securities during a 12-month period, have been mailed addressed to such stockholder at such stockholder’s address as shown on
the records of the Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not be
required. Any action or meeting that shall be taken or held without notice to such stockholder shall have the same force and effect
as if such notice had been duly given. If any such stockholder shall deliver to the Corporation a written notice setting forth such
stockholder’s then current address, the requirement that notice be given to such stockholder shall be reinstated. In the event
that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware,
the certificate need not state that notice was not given to persons to whom notice was not required to be given pursuant to Section
230(b) of the DGCL. The exception in subsection (1) of the first sentence of this paragraph to the requirement that notice be given
shall not be applicable to any notice returned as undeliverable if the notice was given by electronic transmission.
Section 9.4. Waiver
of Notice. Whenever any notice is required to be given under applicable law, the Certificate of Incorporation, or these By
Laws, a written waiver of such notice, signed by the person or persons entitled to said notice, or a waiver by electronic transmission
by the person entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such required notice.
All such waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such
meeting, except where a person attends for the express purpose of objecting to the transaction of any business on the ground that the
meeting was not lawfully called or convened.
Section 9.5. Meeting
Attendance via Remote Communication Equipment.
(a) Stockholder
Meetings. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may
adopt, stockholders entitled to vote at such meeting and proxy holders not physically present at a meeting of stockholders may, by means
of remote communication:
(i) participate in a meeting of stockholders; and
(ii) be deemed present in person and vote at a meeting
of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (A)
the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by
means of remote communication is a stockholder or proxy holder, (B) the Corporation shall implement reasonable measures to provide such
stockholders and proxy holders a reasonable opportunity to participate in the meeting and, if entitled to vote, to vote on matters submitted
to the applicable stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with
such proceedings, and (C) if any stockholder or proxy holder votes or takes other action at the meeting by means of remote communication,
a record of such votes or other action shall be maintained by the Corporation.
(b) Board
Meetings. Unless otherwise restricted by applicable law, the Certificate of Incorporation or these By Laws, members of the
Board or any committee thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone or
other communications equipment by means of which all persons participating in the meeting can hear each other. Such participation in a
meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose
of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.
Section 9.6. Dividends.
The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s
capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Certificate of Incorporation.
Section 9.7. Reserves.
The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may
abolish any such reserve.
Section 9.8. Contracts
and Negotiable Instruments. Except as otherwise provided by applicable law, the Certificate of Incorporation or these By
Laws, any contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the
Corporation by such officer or officers or other employee or employees of the Corporation as the Board may from time to time
authorize. Such authority may be general or confined to specific instances as the Board may determine. The Chairman of the Board,
any Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer or any Vice President may execute and deliver
any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation. Subject to any
restrictions imposed by the Board, the Chairman of the Board , any Chief Executive Officer, President, the Chief Financial Officer,
the Treasurer or any Vice President may delegate powers to execute and deliver any contract, bond, deed, lease, mortgage or other
instrument in the name and on behalf of the Corporation to other officers or employees of the Corporation under such person’s
supervision and authority, it being understood, however, that any such delegation of power shall not relieve such officer of
responsibility with respect to the exercise of such delegated power.
Section 9.9. Fiscal
Year. The fiscal year of the Corporation shall be fixed by the Board.
Section 9.10. Seal.
The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise reproduced.
Section 9.11. Books
and Records. The books and records of the Corporation may be kept within or outside the State of Delaware at such place or
places as may from time to time be designated by the Board.
Section 9.12. Resignation.
Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission to the Chairman
of the Board, any Chief Executive Officer, the President or the Secretary. The resignation shall take effect at the time it is delivered
unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. Unless
otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 9.13. Surety
Bonds. Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board, any Chief Executive Officer,
President or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the restoration
to the Corporation, in case of their death, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in their possession or under their control belonging to the Corporation, in such amounts and
by such surety companies as the Chairman of the Board, any Chief Executive Officer, President or the Board may determine. The premiums
on such bonds shall be paid by the Corporation and the bonds so furnished shall be in the custody of the Secretary.
Section
9.14. Securities of Other Corporations. Powers
of attorney, proxies, waivers of notice of meeting, consents in writing and other instruments relating to securities owned by the Corporation
may be executed in the name of and on behalf of the Corporation by the Chairman of the Board, any Chief Executive Officer, President,
any Vice President or any officers authorized by the Board. Any such officer, may, in the name of and on behalf of the Corporation, take
all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation
in which the Corporation may own securities, or to consent in writing, in the name of the Corporation as such holder, to any action by
such corporation, and at any such meeting or with respect to any such consent shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed. The
Board may from time to time confer like powers upon any other person or persons.
Section 9.15. Amendments.
The Board shall have the power to adopt, amend, alter or repeal the By Laws. The affirmative vote of a majority of the Board shall be
required to adopt, amend, alter or repeal the By Laws. The By Laws also may be adopted, amended, altered or repealed by the stockholders;
provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by
applicable law or the Certificate of Incorporation, the affirmative vote of the holders of at least a majority of the voting power (except
as otherwise provided in Section 8.7) of all outstanding shares of capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the
By Laws.
Exhibit 10.1
THIS PROMISSORY NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE
OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
PROMISSORY NOTE
Principal Amount: $2,000,000 |
Dated as of July 17, 2023 |
Priveterra Acquisition Corp. II, a Delaware corporation
(the “Maker”), promises to pay to the order of Priveterra Sponsor, LLC II or its registered assigns or successors in
interest (the “Payee”), or order, the principal sum of Two Million Dollars ($2,000,000) or such lesser amount as shall
have been advanced by Payee to Maker and shall remain unpaid under this Note on the Maturity Date (as defined below) in lawful money of
the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer
of immediately available funds or as otherwise determined by the Maker to such account as the Payee may from time to time designate by
written notice in accordance with the provisions of this Note.
1. Principal. The
entire unpaid principal balance of this Note plus any interest payable thereon pursuant to Section 2 shall be payable on the date on which
Maker consummates its initial business combination (such date, the “Maturity Date”). In the event that Maker fails
to consummate an initial business combination, the full amount of the Principal Amount of this Note shall be payable by Maker to Payee
within fifteen (15) days of such failure to consummate; provided, that in no event shall Maker make any payment of the Principal Amount
other than from cash of Maker held outside the trust account established in connection with the Maker’s initial public offering
and to the extent the assets of Maker outside such trust account is insufficient for payment of the outstanding Principal Amount, Maker
shall have no further liability for any excess amount of unpaid principal balance under this Note to Payee. The principal balance may
be prepaid at any time without penalty. Under no circumstances shall any individual, including but not limited to any officer, director,
employee or interest holder of Maker, be obligated personally for any obligations or liabilities of the Maker hereunder.
2. Interest. Interest
shall accrue on the unpaid principal balance of this Note at a rate of 16.00% per annum.
3. Application of Payments. All payments
shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation)
reasonable attorney’s fees, then to the payment in full of any late charges, then to accrued interest thereon to the date of such
payment and finally to the reduction of the unpaid principal balance of this Note.
4. Events of Default.
The following shall constitute an event of default (“Event of Default”):
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(a) |
Failure to Make Required Payments. Failure by Maker to pay the principal amount due pursuant to this Note within five (5) business days after the Maturity Date. |
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(b) |
Voluntary Bankruptcy, Dissolution, Etc. The commencement by Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or commencement of Maker’s liquidation or dissolution proceedings or the taking of corporate action by Maker in furtherance of any of the foregoing. |
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(c) |
Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days. |
5. Remedies.
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(a) |
Upon the occurrence of an Event of Default specified in Section 5(a) hereof, Payee may, by written notice to Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note, and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding. |
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(b) |
Upon the occurrence of an Event of Default specified in Sections 5(b) or 5(c), the unpaid principal balance of this Note, and all other sums payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without any action on the part of Payee. |
6. Waivers. Maker and all endorsers and
guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest and notice of protest with
regard to the Note, all errors, defects and imperfections in any proceedings instituted by Payee under the terms of this Note, and all
benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal or any part of the
proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution,
exemption from civil process or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant
to a judgment obtained by virtue hereof or any writ of execution issued hereon, may be sold upon any such writ in whole or in part in
any order desired by Payee.
7. Unconditional Liability. Maker hereby
waives all notices in connection with the delivery, acceptance, performance, default or enforcement of the payment of this Note, and agrees
that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner
by any indulgence, extension of time, renewal, waiver or modification granted or consented to by Payee, and consents to any and all extensions
of time, renewals, waivers or modifications that may be granted by Payee with respect to the payment or other provisions of this Note,
and agrees that additional makers, endorsers, guarantors or sureties may become parties hereto without notice to Maker or affecting Maker’s
liability hereunder.
8. Administrative Services. Payee shall
make available, or cause to be made available, to Maker, at 1 Park Plaza, Irvine, CA 92614 (or any successor location of Payee), certain
office space, utilities, secretarial support and administrative services as may be reasonably requested by Maker. In exchange therefor,
Maker shall pay Payee the sum of $25,000 per month.
9. Notices. All notices, statements or
other documents that are required or contemplated by this Note shall be: (i) in writing and delivered personally or sent by first class
registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing,
(ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing
by such party and (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic
mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been
given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile
or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent
by mail.
10. Governing Law. Maker and Payee agree
that this Note, and all actions or proceedings arising therefrom or relating thereto, shall be construed and enforced in accordance with
the laws of the State of New York, and shall be tried and litigated in state or federal courts located in the Borough or Manhattan, New
York City, State of New York.
11. Severability. Any provision contained
in this Note that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
12. Trust Waiver. Notwithstanding anything
herein to the contrary, the Payee hereby waives any and all right, title, interest or claim of any kind (“Claim”) in
or to any distribution of or from the trust account in which the proceeds of the initial public offering conducted by the Maker were deposited
(including the deferred underwriters’ discounts and commissions) and hereby agrees not to seek recourse, reimbursement, payment
or satisfaction for any Claim against the trust account for any reason whatsoever.
13. Amendment; Waiver. Any amendment hereto
or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and the Payee.
14. Severability. If one or more provisions
of this Note are held to be unenforceable under applicable law, such provisions will be excluded from this Note and the balance of the
Note will be interpreted as if such provisions were so excluded and this Note will be enforceable in accordance with its terms.
15. Assignment. No assignment or transfer
of this Note or any rights or obligations hereunder may be made by any party hereto (by operation of law or otherwise) without the prior
written consent of the other party hereto and any attempted assignment without the required consent shall be void.
16. Expenses. Each party will pay all costs
and expenses that it incurs with respect to the preparation, execution and performance of this Note, including all fees and expenses of
agents, representatives, financial advisors, legal counsel and accountants.
17. Counterparts. This Note may be executed
in counterparts, each of which will be deemed an original, but all of which together will be deemed to be one and the same instrument.
Counterparts may be delivered via facsimile, electronic mail (including PDF or any electronic signature complying with the U.S. federal
ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method, and any counterpart so delivered will be deemed to have been
duly and validly delivered and be valid and effective for all purposes.
18. Further Assurances. From time to time,
the parties will execute and deliver such additional documents and will provide such additional information as may reasonably be required
to carry out the terms of this Note and any agreements executed in connection herewith.
[Signature page follows]
IN WITNESS WHEREOF, Payee, intending to
be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
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PAYEE |
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Priveterra Sponsor, LLC II |
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By: |
/s/ Oleg Grodnensky |
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Name: |
Oleg Grodnensky |
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Title: |
Manager |
[Signature Page to Promissory Note]
IN WITNESS WHEREOF, Maker, intending to
be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
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PRIVETERRA ACQUISITION CORP. II |
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By: |
/s/ Oleg Grodnensky |
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Name: |
Oleg Grodnensky |
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Title: |
Chief Executive Officer |
[Signature Page to Promissory Note]
v3.23.2
Cover
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Jul. 17, 2023 |
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Jul. 17, 2023
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Current Fiscal Year End Date |
--12-31
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Entity File Number |
001-39858
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Entity Registrant Name |
Priveterra Acquisition Corp. II
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Entity Central Index Key |
0001821606
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Entity Tax Identification Number |
85-2478126
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Entity Incorporation, State or Country Code |
DE
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Entity Address, Address Line One |
1 Park Plaza
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Entity Address, City or Town |
Irvine
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CA
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92614
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949
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787-2910
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Units, each consisting of one share
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Trading Symbol |
TMKRU
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NASDAQ
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Class
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TMKR
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NASDAQ
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Warrants, each exercisable for one
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TMKRW
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NASDAQ
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Priveterra Acquisition C... (NASDAQ:TMKRU)
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