EX-3.1 2 tm2333604d1_ex3-1.htm EXHIBIT 3.1

 

Exhibit 3.1

 

AMENDMENT TO THE

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

BANYAN ACQUISITION CORPORATION

 

Pursuant to Section 242 of the Delaware General Corporation Law

 

BANYAN ACQUISITION CORPORATION, a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), does hereby certify as follows:

 

1.The name of the Corporation is “Banyan Acquisition Corporation” The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on March 10, 2021 (the “Original Certificate”). An amended and restated certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on January 19, 2022 and on April 21, 2023 (the “Amended and Restated Certificate of Incorporation”).

 

2.This Amendment to the Amended and Restated Certificate of Incorporation amends the Amended and Restated Certificate of Incorporation of the Corporation.

 

3.This Amendment to the Amended and Restated Certificate of Incorporation was duly adopted by the affirmative vote of the holders of 65% of the stock entitled to vote at a meeting of stockholders in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware (the “DGCL”).

 

4.The text of Section 9.1 of Article IX is hereby amended and restated to read in full as follows:

 

(a)           The provisions of this Article IX shall apply during the period commencing upon the effectiveness of this Amended and Restated Certificate and terminating upon the consummation of the Corporation’s initial Business Combination, and an amendment to this Article IX shall be effective prior to the consummation of the initial Business Combination with the approval of the affirmative vote of the holders of at least sixty five percent (65%) of all then outstanding shares of the Common Stock. The Corporation has until January 24, 2024 to consummate a Business Combination.

 

Notwithstanding the foregoing or any other provisions of the Amended and Restated Certificate, in the event that the Corporation has not consummated a Business Combination by January 24, 2024, the Corporation may, without another stockholder vote, elect to extend the date to consummate the Business Combination on a monthly basis for up to twelve times by an additional one month each time after January 24, 2024, by resolution of the Board, if requested by Banyan Acquisition Sponsor LLC (the “Sponsor”) in writing, and upon five days’ advance notice prior to the applicable termination date, until January 24, 2025, provided that the Sponsor (or one or more of its affiliates, members or third-party designees) (the “Lender”) will deposit $0.02 for each then-outstanding share of Class A Common Stock into the trust account (the “Trust Account”) for each such monthly extension, for an aggregate deposit of up to $0.24 for each then issued and outstanding share of Class A Common Stock (if all twelve additional monthly extensions are exercised), in exchange for a non-interest bearing, unsecured promissory note issued by the Corporation to the Lender. If the Corporation completes a Business Combination, it will, at the option of the Lender, repay the amounts loaned under the promissory note or convert a portion or all of the amounts loaned under such promissory note into warrants, which warrants will be identical to the private placement warrants issued to the Sponsor at the time of the Offering. If the Corporation does not complete a Business Combination by the applicable termination date, such promissory note will be repaid only from funds held outside of the Trust Account or will be forfeited, eliminated or otherwise forgiven.

 

 

 

 

(b)           Immediately after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds of any exercise of the underwriters’ over-allotment option) and certain other amounts specified in the Registration Statement, shall be deposited in the Trust Account, established for the benefit of the Public Stockholders (as defined below) pursuant to the Trust Agreement. Except for the withdrawal of interest to pay taxes, none of the funds held in the Trust Account (including the interest earned on the funds held in the Trust Account) will be released from the Trust Account until the earliest of (i) the completion of the initial Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to complete its initial Business Combination by January 24, 2024 (or up to January 24, 2024 in certain circumstances as described in Section 9.1(a)), and (iii) the redemption of Offering Shares in connection with a vote seeking to amend any provisions of this Amended and Restated Certificate (A) to modify the substance or timing of the Corporation’s obligation to allow redemptions in connection with the Corporation’s initial Business Combination or to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination by January 24, 2024 (or up to January 24, 2025 in certain circumstances as described in Section 9.1(a)) or (B) relating to stockholders’ rights or pre-initial Business Combination activity (as described in Section 9.7). Holders of shares of the Common Stock included as part of the units sold in the Offering (the “Offering Shares”) (whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering and whether or not such holders are the Sponsor or officers or directors of the Corporation, or affiliates of any of the foregoing), solely in their capacity as such, are referred to herein as “Public Stockholders.”

 

5.The text of Section 9.2(d) of Article IX is hereby amended and restated to read in full as follows:

 

(d) In the event that the Corporation has not consummated an initial Business Combination by January 24, 2024 (or up to January 24, 2025 in certain circumstances as described in Section 9.1(a)), the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Offering Shares in consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (A) the aggregate amount then on deposit in the Trust Account, including interest (net of taxes payable, and less up to $100,000 of such interest to pay dissolution expenses), by (B) the total number of then outstanding Offering Shares, which redemption will completely extinguish rights of the Public Stockholders (including the right to receive further liquidating distributions, if any), and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the remaining stockholders and the Board in accordance with applicable law, dissolve and liquidate, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.

 

6.The text of Section 9.7 of Article IX is hereby amended and restated to read in full as follows:

 

Additional Redemption Rights. If, in accordance with Section 9.1(a), any amendment is made to this Amended and Restated Certificate that would modify the substance or timing of the Corporation’s obligation to allow redemptions in connection with the Corporation’s initial Business Combination or to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination by January 24, 2024 (or up to January 24, 2025 in certain circumstances as described in Section 9.1(a)), or with respect to any other provision herein relating to stockholders’ rights or pre-initial Business Combination activity, the Public Stockholders shall be provided with the opportunity to redeem their Offering Shares upon the approval of any such amendment, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest (net of taxes payable), divided by the number of then outstanding Offering Shares. The Corporation’s ability to provide such opportunity is subject to the Redemption Limitation.

 

 

 

 

IN WITNESS WHEREOF, Banyan Acquisition Corporation has caused this Amendment to the Amended and Restated Certificate of Incorporation to be duly executed in its name and on its behalf by an authorized officer as of this 21st day of December, 2023.

 

BANYAN ACQUISITION CORPORATION  
   
By: /s/ Keith Jaffee  
Name: Keith Jaffee  
Title: Chief Executive Officer