Exhibit 1.1
[_________] Shares
ONESTREAM, INC.
CLASS A COMMON STOCK (PAR VALUE $0.0001 PER SHARE)
UNDERWRITING AGREEMENT
[______________], 2024
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[_______________], 2024
Morgan Stanley & Co. LLC | |
J.P. Morgan Securities LLC | |
| as Representatives of the several |
| Underwriters listed in Schedule I hereto |
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c/o | Morgan Stanley & Co. LLC |
| 1585 Broadway |
| New York, New York 10036 |
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c/o | J.P. Morgan Securities LLC |
| 383 Madison Avenue |
| New York, New York 10179 |
Ladies and Gentlemen:
OneStream, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the several Underwriters named in Schedule I hereto (the “Underwriters”), for whom Morgan Stanley & Co. LLC (“Morgan Stanley”) and J.P. Morgan & Co. LLC (together, the “Representatives”) are acting as Representatives, and certain stockholders of the Company named in Schedule II hereto (the “Selling Stockholders”) severally propose to sell to the several Underwriters, an aggregate of [_________] shares of the Class A common stock, $0.0001 par value per share, of the Company (the “Class A Common Stock”), of which [_________] shares are to be issued and sold by the Company and [_________] shares are to be sold by the Selling Stockholders, each Selling Stockholder selling the amount of shares set forth opposite such Selling Stockholder’s name in Schedule II hereto. Such shares of Class A Common Stock to be sold by the Company and the Selling Stockholders (after giving effect to the Reorganization Transactions (as defined below)) shall hereinafter be referred to as the “Firm Shares.”
The Company also proposes to issue and sell to the several Underwriters not more than an additional [_________] shares of its Class A Common Stock (the “Additional Shares”), if and to the extent that you, as the Representatives, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of Class A Common Stock granted to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the “Shares.” The shares of Class A Common Stock to be outstanding after giving effect to the sales contemplated hereby, together with the shares of Class B common stock, $0.0001 par value per share, of the Company, the shares of Class C common stock, $0.0001 par value per share, of the Company (the “Class C Common Stock”) and the shares of Class D common stock, $0.0001 par value per share, of the Company (the “Class D Common Stock”) to be outstanding after giving effect to the Reorganization Transactions, are hereinafter
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referred to as the “Common Stock.” The Company and the Selling Stockholders are hereinafter sometimes collectively referred to as the “Sellers.”
On the date hereof the business of the Company is conducted through OneStream Software LLC, a Delaware limited liability company (“OneStream LLC,” and, together with the Company, the “OneStream Parties”), and its subsidiaries. In connection with the offering contemplated by this underwriting agreement (this “Agreement”), the Reorganization Transactions (as such term is defined in the Registration Statement and the Time of Sale Prospectus (each as defined below) in the section titled “Organizational Structure—Reorganization Transactions”) will be effected prior to the Closing Date (as defined below), pursuant to which the Company will become the sole managing member of OneStream LLC. As the sole managing member of OneStream LLC, the Company will operate and control all of the business and affairs of OneStream LLC and, through OneStream LLC and its subsidiaries, conduct its business.
All references to (x) “Subsidiaries” of the Company shall be understood to refer to its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”)), including OneStream LLC, after giving effect to the Reorganization Transactions and (y) properties of the Company, OneStream LLC or any of their Subsidiaries, shall be understood to refer to the properties of the Company, OneStream LLC or any of their Subsidiaries, respectively, after giving effect to the Reorganization Transactions.
This Agreement, OneStream LLC’s amended and restated limited liability company agreement to become effective on or prior to the Closing Date, the tax receivable agreement among the Company, OneStream LLC and the other parties thereto, the registration rights agreement between the Company and certain stockholders of the Company party thereto, and the stockholders’ agreement between the Company and certain stockholders of the Company party thereto are herein collectively referred to as the “Reorganization Transaction Documents.”
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1 (File No. 333-280573), including a preliminary prospectus, relating to the Shares. The registration statement as amended at the time it becomes effective, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement”; the prospectus in the form first used to confirm sales of Shares (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus.” If the Company has filed an abbreviated registration statement to register the sale of additional shares of Class A Common Stock pursuant to Rule 462(b) under the Securities Act (a “Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement” shall be deemed to include such Rule 462 Registration Statement.
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For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “preliminary prospectus” shall mean each prospectus used prior to the effectiveness of the Registration Statement, and each prospectus that omitted information pursuant to Rule 430A under the Securities Act that was used after such effectiveness and prior to the execution and delivery of this Agreement, “Time of Sale Prospectus” means the preliminary prospectus contained in the Registration Statement at the time of its effectiveness together with the documents and pricing information set forth in Schedule IV hereto, and “broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof.
Morgan Stanley has agreed to reserve a portion of the Shares to be purchased by it under this Agreement for sale to the Company’s directors, officers, employees and certain partners of the Company (collectively, “Participants”), as set forth in each of the Time of Sale Prospectus and the Prospectus under the heading “Underwriters (Conflicts of Interest)” (the “Directed Share Program”). The Shares to be sold by Morgan Stanley and its affiliates pursuant to the Directed Share Program, at the direction of the Company, are referred to hereinafter as the “Directed Shares.” Any Directed Shares not orally confirmed for purchase by any Participant by 11:59 p.m. Eastern Time on the date this Agreement is executed will be offered to the public by the Underwriters as set forth in the Prospectus.
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On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and the Underwriters shall have the right to purchase, severally and not jointly, up to [________] Additional Shares at the Purchase Price, provided, however, that the amount paid by the Underwriters for any Additional Shares shall be reduced by an amount per share equal to any dividends declared by the Company and payable on the Firm Shares but not payable on such Additional Shares. The Representatives may exercise this right on behalf of the Underwriters in whole or from time to time in part by giving written notice to the Company not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters and the date on which such Additional Shares are to be purchased. Each purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Shares or later than ten business days after the date of such notice. Additional Shares may be purchased as provided in Section 5 hereof solely for the purpose of covering over-allotments made in connection with the offering of the Firm Shares. On each day, if any, that Additional Shares are to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm Shares.
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Payment for any Additional Shares shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Additional Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date specified in the corresponding notice described in Section 3 or at such other time on the same or on such other date, in any event not later than [_______], 2024, as shall be agreed upon in writing by the Company and the Representatives.
The Firm Shares and Additional Shares shall be registered in such names and in such denominations as the Representatives shall request in writing not later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and Additional Shares shall be delivered to the Representatives on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts of the several Underwriters. The Purchase Price payable by the Underwriters shall be reduced by (i) any transfer taxes paid by, or on behalf of, the Underwriters in connection with the transfer of the Shares to the Underwriters duly paid and (ii) any withholding required by law.
The several obligations of the Underwriters are subject to the following further conditions:
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The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
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With respect to the negative assurance letters to be delivered pursuant to Sections 6(c) and 6(f) above, Wilson Sonsini Goodrich & Rosati, Professional Corporation, and Latham & Watkins LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the contents thereof, but are without independent check or verification, except as specified. With respect to Section 6(d) and 6(e) above, Jones Day and Whalen LLP may rely upon an opinion or opinions of counsel for any Selling Stockholders and, with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of each Selling Stockholder contained herein and in the Custody Agreement and Power of Attorney of such Selling Stockholder (as applicable) and in other documents and instruments; provided that (A) each such counsel for the Selling Stockholder is satisfactory to the Representatives, (B) a copy of each opinion so relied upon is delivered to the Representatives and is in form and substance satisfactory to the Representatives, (C) copies of such Custody Agreements and Powers of Attorney and of any such other documents and instruments shall be delivered to the Representatives and shall be in form and substance satisfactory to the Representatives and (D) Jones Day and Whalen LLP shall state in their opinion that they are justified in relying on each such other opinion.
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Each OneStream Party covenants with each Underwriter that, without the prior written consent of the Representatives on behalf of the Underwriters, it will not, and will not publicly disclose an intention to, during the period ending on the earlier of (x) the commencement of trading on the second trading day immediately following the Company’s public release of earnings (which for this purpose shall not include “flash” numbers or preliminary, partial earnings) for the second completed quarterly period following the most recent period for which financial statements were included in the Prospectus and (y) 180 days after the date of the Prospectus (the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise or (3) confidentially submit any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock.
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The restrictions contained in the preceding paragraph shall not apply to (A) the Shares to be sold hereunder or the issuance, transfer, redemption or exchange of securities of the OneStream Parties in connection with the Reorganization Transactions or the transactions contemplated by this Agreement as described in the Time of Sale Prospectus and the Prospectus, (B) the issuance of shares of Common Stock by the Company or membership interests by OneStream LLC upon the exercise of an option or warrant, the conversion or vesting and settlement of a security outstanding on the date hereof, or the redemption or exchange of membership interests of OneStream LLC, as described in the Time of Sale Prospectus and the Prospectus; provided that each recipient of Common Stock pursuant to this clause (B) shall execute a lock-up agreement substantially in the form of Exhibit A hereto with respect to the remaining portion of the Restricted Period, (C) the grant of options or any other type of equity award described in the Time of Sale Prospectus and the Prospectus, or the issuance of shares of Common Stock by the Company (whether upon the exercise of stock options or otherwise) to employees, officers, directors, advisors or consultants of the Company pursuant to employee benefit plans in effect on the date hereof and described in the Time of Sale Prospectus and the Prospectus; provided that each recipient of Common Stock pursuant to this clause (C) shall execute a lock-up agreement substantially in the form of Exhibit A hereto with respect to the remaining portion of the Restricted Period, (D) the filing by the Company of a registration statement on Form S-8 relating to the issuance, vesting, exercise or settlement of equity awards granted or to be granted pursuant to any employee benefit plan in effect on the date hereof and described in the Time of Sale Prospectus and the Prospectus, (E) the establishment of a trading plan on behalf of itself or a stockholder, officer or director of the Company pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (i) such plan does not provide for the transfer of Common Stock during the Restricted Period (except to the extent otherwise allowed pursuant to the terms of the Lock-up Agreement) and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period, or (F) the sale or issuance of or entry into an agreement to sell or issue Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock in connection with one or more mergers, acquisitions of securities, businesses, property or other assets, products or technologies; joint ventures; commercial relationships or other strategic corporate transactions or alliances; provided that the aggregate amount of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock (on an as-converted, as-exercised or as-exchanged basis) that the Company may sell or issue or agree to sell or issue pursuant to this clause (F) shall not exceed 10% of the total number of shares of Common Stock of the Company issued and outstanding immediately following the completion of the transactions contemplated by this Agreement (including issuance of Additional Shares, if any) determined on a fully-diluted basis and assuming that all outstanding membership interests in OneStream LLC that are exchangeable for shares of Class A Common Stock are so exchanged.
In addition, during the Restricted Period, the OneStream Parties agree to (a) enforce the market standoff provisions and any similar transfer restrictions contained in
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any agreement between the OneStream Parties and any of its security holders, including, without limitation, through the issuance of stop transfer instructions to the OneStream Parties’ transfer agent with respect to any transaction that would constitute a breach of, or default under, the transfer restrictions, and (b) not amend or waive any such transfer restrictions with respect to any such holder without the prior written consent of the Representatives on behalf of the Underwriters.
If the Representatives, in their sole discretion, agree to release or waive the restrictions on the transfer of Shares set forth in a Lock-up Agreement for an officer or director of the Company and provide the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at least two business days before the effective date of the release or waiver (or such other method approved by the Representatives that satisfies the requirements of FINRA Rule 5131(d)(2)).
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The provisions of this Section shall not supersede or otherwise affect any agreement that the Sellers may otherwise have for the allocation of such expenses among themselves.
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If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one‑tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite their respective names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of all such non‑defaulting Underwriters, or in such other proportions as the Representatives may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 14 by an amount in excess of one‑ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default occurs is more than one‑tenth of the aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to the Representatives, the Company and the Selling Stockholders for the purchase of such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non‑defaulting Underwriter, any OneStream Party or the Selling Stockholders. In any such case either the Representatives or the relevant Sellers shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which such default occurs is more than one‑tenth of the aggregate number of Additional Shares to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of any OneStream Party or Seller to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason any OneStream Party or Seller shall be unable to perform its obligations under this Agreement as a result of the circumstances described in Section 13(ii), the OneStream Parties will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out‑of‑pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
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For purposes of this Section a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
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[Signature Pages Follow]
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Very truly yours, | |
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ONESTREAM, INC. | |
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By: |
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| Name: |
| Title: |
ONESTREAM, SOFTWARE LLC | |
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By: |
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| Name: |
| Title: |
The Selling Stockholders named in Schedule II hereto (except those designated as a KKR Seller), acting severally | |
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By: |
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| Name: |
| Title: Attorney-in Fact |
[Signature Page to Underwriting Agreement]
KKR AMERICAS XII (DREAM) BLOCKER PARENT L.P. | |
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By: | KKR ASSOCIATES AMERICAS XII |
AIV L.P., its general partner | |
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By: | KKR Americas XII AIV GP LLC, its |
general partner | |
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By: |
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| Name: |
| Title: |
KKR AMERICAS XII EEA (DREAM) BLOCKER PARENT L.P. | |
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By: | KKR ASSOCIATES AMERICAS XII |
AIV L.P., its general partner | |
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By: | KKR Americas XII AIV GP LLC, its |
general partner | |
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By: |
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| Name: |
| Title: |
KKR AMERICAS XII (DREAM II) BLOCKER PARENT L.P. | |
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By: | KKR ASSOCIATES AMERICAS XII |
AIV L.P., its general partner | |
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By: | KKR Americas XII AIV GP LLC, its |
general partner | |
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By: |
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| Name: |
| Title: |
[Signature Page to Underwriting Agreement]
KKR TFO PARTNERS L.P. | |
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By: | KKR ASSOCIATES TFO L.P., its |
general partner | |
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By: | KKR TFO GP Limited, its general |
partner | |
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By: |
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| Name: |
| Title: |
KKR CUSTOM EQUITY OPPORTUNITIES FUND L.P. | |
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By: | KKR Associates Custom Equity |
Opportunities L.P., its general partner | |
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By: | KKR Custom Equity Opportunities |
Limited, its general partner | |
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By: |
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| Name: |
| Title: |
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By: | KKR Associates Milton Strategic L.P., |
its general partner | |
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By: | KKR Milton Strategic Limited, its |
general partner | |
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By: |
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| Name: |
| Title: |
[Signature Page to Underwriting Agreement]
KKR NGT (DREAM) BLOCKER PARENT L.P. | |
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By: | KKR Associates NGT L.P., its general |
partner | |
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By: | KKR Next Gen Tech Growth Limited, |
its general partner | |
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By: |
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| Name: |
| Title: |
KKR NGT (DREAM) BLOCKER PARENT (EEA) L.P. | |
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By: | KKR Associates NGT L.P., its general |
partner | |
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By: | KKR Next Gen Tech Growth Limited, |
its general partner | |
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By: |
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| Name: |
| Title: |
KKR WOLVERINE I LTD. | |
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By: |
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| Name: Title: |
K-PRIME AG FINANCING L.P. | |
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By: | K-PRIME Hedge-Finance GP Limited., |
its general partner | |
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[Signature Page to Underwriting Agreement]
By: |
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| Name: |
| Title: |
[Signature Page to Underwriting Agreement]
Accepted as of the date hereof | |
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Morgan Stanley & Co. LLC | |
J.P. Morgan Securities LLC | |
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Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto. | |
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By: | Morgan Stanley & Co. LLC |
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By: |
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| Name: |
| Title: |
By: | J.P. Morgan Securities LLC |
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By: |
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| Name: |
| Title: |
[Signature Page to Underwriting Agreement]
SCHEDULE I
Underwriter |
| Number of Firm Shares To Be Purchased |
Morgan Stanley & Co. LLC |
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J.P. Morgan Securities LLC |
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KKR Capital Markets |
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BofA Securities, Inc. |
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Citigroup Global Markets Inc. |
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Guggenheim Securities, LLC |
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BTIG, LLC |
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Piper Sandler & Co. |
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Raymond James & Associates, Inc. |
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TD Securities (USA) LLC |
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Scotia Capital (USA) Inc. |
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AmeriVet Securities, Inc. |
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Blaylock Van, LLC |
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Cabrera Capital Markets LLC |
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Loop Capital Markets LLC |
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Needham & Company, LLC |
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Truist Securities, Inc. |
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WR Securities, LLC |
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Nomura Securities International, Inc. |
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Total: |
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I-1
Schedule II
Selling Stockholder |
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| Number of Firm Shares To Be Sold |
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KKR Americas XII (Dream) Blocker Parent L.P. | * |
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KKR Americas XII EEA (Dream) Blocker Parent L.P. | * |
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KKR Americas XII (Dream II) Blocker Parent L.P. | * |
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KKR TFO Partners L.P. | * |
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KKR Custom Equity Opportunities L.P. | * |
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KKR-Milton Strategic Partners Fund L.P. | * |
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KKR NGT (Dream) Blocker Parent L.P. | * |
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KKR NGT (Dream) Blocker Parent (EEA) L.P. | * |
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KKR Wolverine I Ltd. | * |
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K-PRIME AG Financing L.P. | * |
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[__________] |
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Total: |
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* KKR Seller
II-1
SCHEDULE III
Time of Sale Prospectus
III-1
SCHEDULE IV
Written Testing-the-Waters Communications
IV-1
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
_____________, 2024
Morgan Stanley & Co. LLC | |
J.P. Morgan Securities LLC | |
| as Representatives of the several |
| Underwriters listed in Schedule I to the |
| Underwriting Agreement referred to below |
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c/o | Morgan Stanley & Co. LLC |
| 1585 Broadway |
| New York, NY 10036 |
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c/o | J.P. Morgan Securities LLC |
| 383 Madison Avenue |
| New York, NY 10179 |
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley & Co. LLC and J.P. Morgan Securities LLC (collectively, the “Representatives”) propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with OneStream, Inc., a Delaware corporation (the “Company”), which has been formed to hold a portion of the units of OneStream Software, LLC (“OneStream LLC”), and the selling stockholders named in the Underwriting Agreement, providing for the public offering (the “Public Offering”) by the several Underwriters listed on Schedule I to the Underwriting Agreement, including the Representatives (the “Underwriters”), of shares (the “Shares”) of the Class A common stock, par value $0.0001 per share, of the Company (the “Class A Common Stock”). The undersigned further understands that, prior to the consummation of the Public Offering, the Company will be authorized to issue, in addition to Class A Common Stock, shares of Class B common stock (the “Class B Common Stock”), Class C common stock (the “Class C Common Stock”) and Class D common stock (together with the Class A Common Stock, Class B Common Stock and Class C Common Stock, the “Common Stock”).
To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of each of the Representatives on behalf of the Underwriters, the undersigned will not, and will not cause any of the undersigned’s direct or indirect affiliates to, and will not publicly disclose an intention to, during the period commencing on the date of this letter agreement (this “Letter Agreement”) and ending on the earlier of (i) the date that is 180 days after the date of the final prospectus (the “Prospectus”) relating to the Public Offering or
(ii) immediately prior to the commencement of trading on the second trading day (which shall mean a day on which the New York Stock Exchange and the Nasdaq Stock Market are open for the buying and selling of securities (including days where trading closes early)) following the release of the Company’s second regular quarterly earnings announcement (which for this purpose shall not include “flash” numbers or preliminary, partial earnings) (such period, the “Restricted Period”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, make any short sale or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or units of OneStream LLC beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities so owned that are convertible into or exercisable or exchangeable (directly or indirectly) for, or that represent the right to receive, Common Stock or units of OneStream LLC (such shares of Common Stock, units of OneStream LLC or such other securities collectively, the “Securities,” and any such Securities beneficially owned by the undersigned, the “Undersigned’s Securities”), or (2) enter into any swap, hedging transaction or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Undersigned’s Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Securities, in cash or otherwise. The undersigned acknowledges and agrees that the foregoing precludes the undersigned from engaging in any hedging or other transactions or arrangements (including, without limitation, any short sale or the purchase or sale of, or entry into, any put or call option, or combination thereof, forward, swap or any other derivative transaction or instrument, however described or defined) designed or intended, or which could reasonably be expected to lead to or result in, a sale or disposition or transfer (whether by the undersigned or any other person) of any economic consequences of ownership, in whole or in part, directly or indirectly, of any of the Undersigned’s Securities, whether any such transaction or arrangement (or instrument provided for thereunder) would be settled by delivery of Securities, in cash or otherwise.
Notwithstanding the foregoing, the undersigned may transfer the Undersigned’s Securities in the following transactions:
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provided that in the case of any transfer, distribution or disposition pursuant to clause (3) or (4), such transfer shall not involve a disposition for value, each transferee, donee or distributee shall sign and deliver a lock-up agreement substantially in the form of this Letter Agreement and any public announcement or filing under Section 16(a) of the Exchange Act, or any other public filing or disclosure reporting a reduction in beneficial ownership of shares of Common Stock, shall clearly indicate in the footnotes thereto the nature of the transaction; and provided, further that in the case of any transfer pursuant to clause (7) or (10), no public announcement or filing under Section 16(a) of the Exchange Act, or any other public filing or disclosure shall be made
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during the Restricted Period, unless such filing is required and clearly indicates in the footnotes thereto that it relates to the circumstances described in clauses (7) or (10), as the case may be.
In addition, the undersigned agrees that, without the prior written consent of the Representatives on behalf of the Underwriters, it will not, during the Restricted Period, make any demand for, or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, unless such demand or exercise shall not require the filing of a registration statement until the expiration of the Restricted Period. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.
If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing restrictions shall be equally applicable to any issuer-directed Shares the undersigned may purchase in the Public Offering.
If the undersigned is an officer or director of the Company, (i) the Representatives agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of Securities, the Representatives will notify the Company of the impending release or waiver, and (ii) the Company will agree in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service (or such other method approved by the Representatives that satisfies the requirements of FINRA Rule 5131(d)(2)) at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Representatives hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration or to an immediate family member as defined in FINRA Rule 5130(i)(5) and (b) the transferee has agreed in writing to be bound by the same terms described in this Letter Agreement to the extent and for the duration that such terms remain in effect at the time of the transfer.
The undersigned understands that the Company and the Underwriters are relying upon this Letter Agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this Letter Agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.
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The undersigned acknowledges and agrees that the Underwriters have not provided any recommendation or investment or other advice nor have the Underwriters solicited any action from the undersigned with respect to the Public Offering of the Shares and the undersigned has consulted their own legal, accounting, financial, regulatory, tax and other advisors with respect to this Letter Agreement and the subject matter thereof to the extent deemed appropriate. The undersigned further acknowledges and agrees that, although the Underwriters may provide certain Regulation Best Interest and Form CRS disclosures or other related documentation to you in connection with the Public Offering, the Underwriters are not making a recommendation to you to participate in the Public Offering, enter into this Letter Agreement, or sell any Shares at the price determined in the Public Offering, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter is making such a recommendation.
This Letter Agreement shall automatically terminate, and the undersigned will be released from all of his, her or its obligations hereunder, upon the earliest to occur, if any, of (a) the date that the Company advises the Representatives, in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Public Offering, (b) the date that the Company withdraws the registration statement related to the Public Offering before the execution of the Underwriting Agreement, (c) if the Underwriting Agreement is executed but terminated (other than the provisions thereof that survive termination) prior to payment for and delivery of the Shares to be sold thereunder, the date that the Underwriting Agreement is terminated or (d) December 31, 2024 if the Public Offering of the Shares has not been completed by such date.
Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to the Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.
This Letter Agreement may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any signature so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
This Letter Agreement shall be governed by and construed in accordance with the laws of the State of New York.
[Signature page follows.]
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Yours very truly,
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EXHIBIT B
FORM OF WAIVER OF LOCK-UP
_____________, 20__
[Name and Address of
Officer or Director
Requesting Waiver]
Dear Mr./Ms. [Name]:
This letter is being delivered to Morgan Stanley & Co. LLC (“Morgan Stanley”) and J.P. Morgan Securities LLC (“J.P. Morgan,” and together with Morgan Stanley, the “Representatives”) in connection with the offering by OneStream, Inc. (the “Company”) of _____ shares of Class A common stock, $0.0001 par value (the “Common Stock”), of the Company and the lock-up agreement dated ____, 2024 (the “Lock-up Agreement”), executed by you in connection with such offering, and your request for a [waiver] [release] dated ____, 20__, with respect to ____ shares of Common Stock (the “Shares”).
The Representatives hereby agree to [waive] [release] the transfer restrictions set forth in the Lock-up Agreement, but only with respect to the Shares, effective _____, 20__; provided, however, that such [waiver] [release] is conditioned on the Company announcing the impending [waiver] [release] by press release through a major news service at least two business days before effectiveness of such [waiver] [release]. This letter will serve as notice to the Company of the impending [waiver] [release].
Except as expressly [waived] [released] hereby, the Lock-up Agreement shall remain in full force and effect.
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J.P. Morgan Securities LLC | |
Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto | |
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FORM OF PRESS RELEASE
OneStream, Inc.
[Date]
OneStream, Inc. (the “Company”) announced today that Morgan Stanley & Co. LLC and J.P. Morgan Securities LLC, the lead book-running managers in the Company’s recent public sale of _____ shares of its Class A common stock is [waiving][releasing] a lock-up restriction with respect to ____ shares of the Company’s Class A common stock held by [certain officers or directors] [an officer or director] of the Company. The [waiver][release] will take effect on ____, 20__ , and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
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