Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ONESTREAM, INC.
OneStream, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:
ARTICLE I
The name of the Corporation is OneStream, Inc.
ARTICLE II
The address of the Corporation’s registered office in the State of Delaware is 850 New Burton Road, Suite 201, in the City of Dover, County of Kent, Delaware 19904. The name of its registered agent at such address is Cogency Global Inc.
ARTICLE III
The nature of the business of the Corporation and the objects or purposes to be transacted, promoted or carried on by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL, including, without limitation, (i) investing in securities of OneStream Software LLC, a Delaware limited liability company, or any successor entities thereto (“OneStream Software LLC”) and any of its subsidiaries, (ii) exercising all rights, powers, privileges and other incidents of ownership or possession with respect to the Corporation’s assets, including managing, holding, selling and disposing of such assets and (iii) engaging in any other activities incidental or ancillary thereto.
ARTICLE IV
Section 4.1 Authorized Stock. The total number of shares of all classes of capital stock that the Corporation shall have authority to issue is 3,800,000,000, which shall be divided into two classes, consisting of 3,700,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), and 100,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”). The Common Stock shall be divided into four series, of which 2,500,000,000 shares are designated as Class A Common Stock (the “Class A Common Stock”), 300,000,000 shares are designated as Class B Common Stock (the “Class B Common Stock”), 300,000,000 shares are designated as Class C Common Stock (the “Class C Common Stock”) and 600,000,000 shares are designated as Class D Common Stock (the “Class D Common Stock”). For the avoidance of doubt, each of the Class A Common Stock, Class B Common Stock, Class C Common Stock and Class D Common Stock is a series of the class of Common Stock for all purposes, including, without limitation, under Section 242 of the DGCL.
Immediately upon the effectiveness of the filing of this Certificate of Incorporation with the Secretary of State of the State of Delaware (the “Effective Time”), (i) each share of the Corporation’s Class A Common Stock, par value $0.0001 per share, issued and outstanding or held as treasury stock immediately prior to the Effective Time (the “Old Class A Common Stock”) shall, automatically and without further action by any stockholder, be reclassified as, and shall become, one share of Class A Common Stock, (ii) each share of the Corporation’s Class B Common Stock, par value $0.0001 per share, issued and outstanding or held as treasury stock immediately prior to the Effective Time (the “Old Class B Common Stock”) shall, automatically and without further action by any stockholder, be reclassified as, and shall become, one share of Class B Common Stock, (iii) each share of the Corporation’s Class C Common Stock, par value $0.0001 per share, issued and outstanding or held as treasury stock immediately prior to the Effective Time (the “Old Class C Common Stock”) shall, automatically and without further action by any stockholder, be reclassified as, and shall become, one share of Class C Common Stock, and (iv) each share of the Corporation’s Class D Common Stock, par value $0.0001 per share, issued and outstanding or held as treasury stock immediately prior to the Effective Time (collectively with the Old Class A Common Stock, the Old Class B Common Stock, and the Old Class C Common Stock, the “Old Common Stock”) shall, automatically and without further action by any stockholder, be reclassified as, and shall become, one share of Class D Common Stock ((i)-(iv), collectively, the “Reclassification”). The stockholders registered on the Corporation’s books as the owner of any shares of Old Common Stock shall be registered on the Corporation’s books as the owners of shares of the applicable series of Common Stock issued upon the Reclassification. Each stock certificate that immediately prior to the Effective Time represented shares of Old Common Stock shall, automatically and without the necessity of presenting the same for exchange, from and after the Effective Time, be deemed to represent the shares of Common Stock into which such shares have been reclassified pursuant to the Reclassification until such time as the same shall have been cancelled or exchanged.
Section 4.2 Preferred Stock. The Board of Directors is authorized to provide, out of the unissued shares of Preferred Stock, for the issuance of shares of Preferred Stock in one or more series, and by filing a certificate pursuant to the applicable law of the State of Delaware (such certificate being hereinafter referred to as a “Preferred Stock Designation”), to establish from time to time the number of shares to be included in each such series and to fix the powers, designations, preferences and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including, without limitation, the authority to fix or alter, by resolution or resolutions, the dividend rights, dividend rates, conversion rights, exchange rights, voting rights, rights and terms of redemption (including sinking and purchase fund provisions), redemption price or prices, restrictions on the issuance of shares of such series, dissolution preferences and rights in respect of any distribution of assets of any wholly unissued series of Preferred Stock and the number of shares constituting any such series, and the designation thereof, or any of them and to increase (but not above the total number of authorized shares of Preferred Stock) or
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decrease (but not below the number of shares of such series then outstanding) the number of shares of any series so created (except where otherwise provided in the Preferred Stock Designation), subsequent to the issue of that series. Unless otherwise provided in the applicable Preferred Stock Designation(s), if the authorized number of shares of any series shall be so decreased, the Corporation shall take all such steps as are necessary to cause the shares constituting such decrease to resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series. Unless otherwise provided in any Preferred Stock Designation, there shall be no limitation or restriction on any variation between any of the different series of Preferred Stock as to the designations, powers, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof; and the several series of Preferred Stock may vary in any and all respects as fixed and determined by the resolution or resolutions of the Board of Directors or by a duly authorized committee of the Board of Directors, providing for the issuance of the various series of Preferred Stock.
Section 4.3 Number of Authorized Shares. The number of authorized shares of Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the requisite vote of the stockholders entitled to vote thereon, without a separate class vote of the holders of Common Stock or Preferred Stock, unless a separate vote of any such holders is required pursuant to the terms of any Preferred Stock Designation, irrespective of the provisions of Section 242(b)(2) of the DGCL.
Section 4.4 Class A Common Stock, Class B Common Stock, Class C Common Stock and Class D Common Stock. The powers, preferences and rights of the Class A Common Stock, the Class B Common Stock, the Class C Common Stock and the Class D Common Stock, and the qualifications, limitations or restrictions thereof, are as follows:
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Section 4.5 Transfer of Class B Common Stock, Class C Common Stock and Class D Common Stock; Conversion of Class C Common Stock and Class D Common Stock.
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Section 4.6 Certificates. All certificates representing shares of Class B Common Stock and/or Class C Common Stock shall bear a legend substantially in the following form (or in such other form as the Board of Directors may determine):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS (INCLUDING RESTRICTIONS ON TRANSFER) SET FORTH IN THE CERTIFICATE OF INCORPORATION OF THE CORPORATION AS IT MAY BE AMENDED AND/OR RESTATED AND THE OPERATING AGREEMENT OF ONESTREAM SOFTWARE LLC AS IT MAY BE AMENDED AND/OR RESTATED (COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE CORPORATION AND SHALL BE PROVIDED FREE OF CHARGE TO ANY STOCKHOLDER MAKING A REQUEST THEREFOR).
A notice of such legend shall be given to holders of shares of Class B Common Stock and/or Class C Common Stock in accordance with applicable law.
All certificates representing shares of Class D Common Stock shall bear a legend substantially in the following form (or in such other form as the Board of Directors may determine):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS (INCLUDING RESTRICTIONS ON TRANSFER) SET FORTH IN THE CERTIFICATE OF INCORPORATION OF THE CORPORATION AS IT MAY BE AMENDED AND/OR RESTATED (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE CORPORATION AND SHALL BE PROVIDED FREE OF CHARGE TO ANY STOCKHOLDER MAKING A REQUEST THEREFOR).
A notice of such legend shall be given to holders of shares of Class D Common Stock in accordance with applicable law.
Section 4.7 Amendment.
Except as otherwise required by law, holders of Class A Common Stock, Class B Common Stock, Class C Common Stock and Class D Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any Preferred Stock Designation) that relates solely to the rights, powers, or preferences of, the qualifications, limitations or restrictions of, or the other terms of one or more outstanding series of Preferred Stock.
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ARTICLE V
Section 5.1 Shares Reserved for Issuance.
ARTICLE VI
Section 6.1 In furtherance and not in limitation of the powers conferred upon it by the DGCL, the Board of Directors shall have the power to adopt, amend, alter or repeal the bylaws of the Corporation as in effect from time to time (the “Bylaws”). From and after the occurrence of the Trigger Event, the stockholders may not adopt, amend, alter or repeal the Bylaws unless such action is approved, in addition to any other vote required by this Certificate of Incorporation, by the affirmative vote of the holders of at least 66-2/3% of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors.
Section 6.2 Notwithstanding anything herein to the contrary, in addition to any other vote or consent required by this Certificate of Incorporation or applicable law, the Disinterested Majority Quorum Condition (as defined in the Bylaws) may not be amended, altered or repealed, and no provision of the Bylaws inconsistent therewith may be adopted, unless such amendment, alteration or repeal is approved by the affirmative vote of the holders of at least 75% of the voting power of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors.
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ARTICLE VII
Section 7.1 Ballot. Elections of directors of the Corporation (each such director, in such capacity, a “Director”) need not be by written ballot unless the Bylaws shall so provide.
Section 7.2 Number and Terms of the Board of Directors. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, to elect directors, the number of Directors shall be fixed from time to time exclusively by a majority of the Whole Board of Directors (as defined below); provided, that for as long as the Stockholders’ Agreement is in effect, the number of Directors shall never be less than the aggregate number of Directors that the KKR Investors are entitled to nominate from time to time pursuant to Section 2(a) thereof. Each Director shall be entitled to one vote on each matter presented to the Board of Directors; provided, that for so long as the Disinterested Majority Quorum Condition is satisfied, the affirmative vote of the Disinterested Majority (as defined in the LLC Agreement) shall be required for the authorization by the Board of Directors of any of the matters expressly requiring such approval as set forth in the Bylaws or the LLC Agreement. At all meetings of the Board of Directors, a majority of the Whole Board of Directors shall constitute a quorum for the transaction of business; provided, that so long as the KKR Director Quorum Requirement (as defined in the Bylaws) is applicable, the presence of at least one KKR Director (as defined in the Stockholders’ Agreement) shall be required to have a quorum for the transaction of business by the Board of Directors; provided further, however, that the KKR Director Quorum Requirement shall not apply to any meeting of the Disinterested Majority to the extent that each KKR Director would be an interested director for purposes of any transaction to be considered by the Disinterested Majority at such meeting and a Disinterested Majority shall constitute a quorum for the transaction of such business as long as such Disinterested Majority comprises at least one-third of the Whole Board of Directors. If a quorum is not present at any meeting of the Board of Directors, then the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present; provided, that if a quorum does not exist at any properly called meeting of the Board of Directors due to the failure to satisfy the KKR Director Quorum Requirement, such meeting shall be adjourned and, subject to the obligation to provide prior notice pursuant to these bylaws to the Whole Board of Directors, recalled for the same purpose at least 24 hours and not more than 10 days from the date of such adjournment, and the attendance of a KKR Director shall not be required to establish quorum for such recalled meeting.
Section 7.3 Newly Created Directorships and Vacancies. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, to elect Directors, any newly created directorship that results from an increase in the number of directors or any vacancy on the Board of Directors that results from the death, disability, resignation, disqualification or removal of any Director (including pursuant to the Stockholders’ Agreement) or from any other cause shall be filled solely by the affirmative vote of a majority of the total number of Directors then in office, even if less than a quorum, or by a sole remaining Director, and shall not be filled by the stockholders unless the Board of Directors determines by resolution that any such vacancy or newly created directorship shall be filled by the stockholders. Notwithstanding the foregoing, for as long as the Stockholders’ Agreement is in effect, any vacancy caused by the death, disability, removal or resignation of any KKR Director shall, at KKR’s option, be filled solely by (x) KKR in a written instrument delivered to the Corporation or (y) a majority of the remaining Directors, even if less than a quorum, in accordance with the Stockholders’ Agreement, so long as, after giving effect to the filling of such vacancy, the number of KKR Directors in office does not exceed the number of Directors the KKR Investors are entitled to nominate pursuant to Section 2(a) of the Stockholders’ Agreement. Any Director elected to fill a newly created directorship or vacancy in accordance with the preceding provisions of this Section 7.3 shall hold office until the next annual meeting of stockholders held to elect the class of Directors to which such Director is elected and until his or her successor is duly elected and qualified or until his or her earlier death, resignation, retirement, disqualification, or removal.
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Section 7.4 Term and Removal for Cause. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, to elect Directors, each Director shall hold office until the annual meeting at which such Director’s term expires and until his or her successor is duly elected and qualified, or until his or her earlier death, resignation, disqualification or removal. No decrease in the number of Directors shall shorten the term of any incumbent Director. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, to elect Directors, the Board of Directors or any individual Director may be removed from office at any time either with or without cause by the affirmative vote of the holders of capital stock representing a majority of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote thereon; provided, however, that from and after the time when the KKR Related Parties (as defined below) and the Shea Related Parties first cease to beneficially own, in the aggregate, a majority of the voting power of all of the then outstanding shares of capital stock of the Corporation (the “Trigger Event”), (i) any individual Director (other than any Director elected by the separate vote of the holders of any series of Preferred Stock) may be removed from office only by the affirmative vote of the holders of capital stock representing at least 66-2/3% of the voting power of all of the then outstanding shares of capital stock of the Corporation entitled to vote thereon and (ii) for so long as the Board of Directors is classified as provided in Section 7.5, no such Director may be removed without cause.
Section 7.5 Classified Board. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, to elect Directors, the Directors shall be classified, with respect to the time for which they shall hold their respective offices, by dividing them into three classes, with each Director then in office to be designated as a Class I Director, a Class II Director or a Class III Director, with each class to be apportioned as nearly equal in number as possible. Directors shall be assigned to each class in accordance with a resolution or resolutions adopted by the Board of Directors. The initial Class I Directors shall serve for a term expiring at the first annual meeting of stockholders of the Corporation following the time at which the initial classification of the Board of Directors becomes effective; the initial Class II Directors shall serve for a term expiring at the second annual meeting of stockholders following the time at which the initial classification of the Board of Directors becomes effective; and the initial Class III Directors shall serve for a term expiring at the third annual meeting of stockholders following the time at which the initial classification of the Board of Directors becomes effective. Following the initial term as set forth in the immediately preceding sentence, each director shall serve for a term ending on the date of the third annual meeting of stockholders following the annual meeting of stockholders at which such director was elected and until his or her successor is duly elected and qualified, subject to such Director’s earlier death, resignation or removal in accordance with Section 7.4 of this Certificate of Incorporation. The Board of Directors is authorized to assign each Director already in office at the Effective Time, as well as each Director elected or appointed to a newly created directorship due to an increase in the size of the Board of Directors, to Class I, Class II or Class III. If the number of Directors is changed, any newly created directorships or decrease in directorships shall be so apportioned hereafter among the classes as to make all classes as nearly equal in number as is practicable; provided, that no decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent Director. The provisions of this Section 7.5 are subject to the rights of the holders of any class or series of Preferred Stock to elect directors and such directors need not serve classified terms.
Section 7.6 Notice. Advance notice of stockholder nominations for election of Directors and other business to be brought by stockholders before a meeting of stockholders shall be given in the manner provided by the Bylaws.
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Section 7.7 Preferred Directors. Whenever the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series or separately as a class with one or more such other series, to elect Directors at an annual or special meeting of stockholders, the election, term of office, removal and other features of such directorships shall be governed by the terms of this Certificate of Incorporation (including any Preferred Stock Designation) applicable thereto. The number of Directors that may be elected by the holders of any such series of Preferred Stock shall be in addition to the number fixed pursuant to Section 7.2 hereof, and the total number of Directors constituting the Whole Board of Directors shall be automatically adjusted accordingly. Except as otherwise provided by the Board of Directors in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect additional Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such additional Directors elected by the holders of such stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional Directors, shall forthwith terminate (in which case each such Director thereupon shall cease to be qualified as, and shall cease to be, a Director) and the total authorized number of Directors of the Corporation shall automatically be reduced accordingly.
Section 7.8 No Cumulative Voting. No stockholder will be permitted to cumulate votes at any election of Directors.
Section 7.9 Chairperson of the Board of Directors. For so long as the KKR Investors beneficially own on a collective basis at least 25% in voting power of the outstanding shares of Common Stock, KKR shall have the sole power to appoint any Director as chairperson of the Board of Directors (including, without limitation, appointing any Director to fill a vacancy in the role of chairperson of the Board of Directors) and to remove any person serving as chairperson of the Board of Directors from such position.
Section 7.10 Lead Independent Director. For so long as the KKR Investors beneficially own on a collective basis at least 25% in voting power of the outstanding shares of Common Stock, (i) KKR shall have the sole power to appoint any Director as Lead Independent Director (as defined in the Stockholders’ Agreement) (including, without limitation, appointing any Director to fill a vacancy in the role of Lead Independent Director) and to remove any person serving as Lead Independent Director from such position and (ii) the Corporate Governance Guidelines (as defined in the Stockholders’ Agreement) of the Corporation shall not be amended, modified, supplemented and/or restated with respect to the role, responsibilities or duties of the Lead Independent Director without the consent of KKR.
Section 7.11 Committees. For so long as the KKR Investors are entitled to elect at least one Director pursuant to Section 2(a) of the Stockholders’ Agreement, KKR shall have the power to appoint or direct the appointment of at least one KKR Director to each committee of the Board of Directors, subject to any restrictions on the right of any KKR Director to serve on any such committee set forth in Section 2(e) of the Stockholders’ Agreement.
Section 7.12 Chief Executive Officer. For so long as the KKR Investors beneficially own on a collective basis at least 25% in voting power of the outstanding shares of Common Stock, the Corporation shall not terminate, hire or appoint the Corporation’s chief executive officer (or other Person performing duties of principal executive officer of the Corporation) without first obtaining the written consent or agreement of KKR.
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ARTICLE VIII
Section 8.1 Consent of Stockholders In Lieu of Meeting. Prior to the occurrence of the Trigger Event, any action required or permitted to be taken by the stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents, setting forth the action so taken, are (i) signed by the holders of outstanding shares of stock of the Corporation representing 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 of stock of the Corporation then issued and outstanding entitled to vote thereon were present and voted, and (ii) delivered to the Corporation in accordance with applicable law. From and after the occurrence of the Trigger Event, any action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of the stockholders of the Corporation, and shall not be taken by consent in lieu of a meeting; provided, however, that any action required or permitted to be taken by the holders of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly so provided by the applicable Preferred Stock Designation(s).
Section 8.2 Special Meetings of Stockholders. Subject to the rights of the holders of any series of Preferred Stock, from and after the occurrence of the Trigger Event, a special meeting of the stockholders may be called at any time by (i) the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board of Directors, (ii) the chairperson of the Board of Directors, or (iii) the chief executive officer. Prior to the Trigger Event, a special meeting of the stockholders may be called at any time by (i) the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board of Directors, (ii) the chairperson of the Board of Directors, (iii) the chief executive officer, or (iv) the holders of a majority of the voting power of the Voting Stock. Except as set forth in this Section 8.2, a special meeting may not be called by any other person or persons and any power of stockholders to call a special meeting of stockholders is specifically denied. Only such business shall be considered at a special meeting of stockholders as shall have been stated in the notice for such meeting.
ARTICLE IX
The Corporation reserves the right to amend, alter, change, adopt or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation; provided, however, that, notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of shares of any class or series of capital stock of the Corporation required by law or by this Certificate of Incorporation, from and after the occurrence of the Trigger Event, the affirmative vote of the holders of at least 66-2/3% of the voting power of all of the then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of Directors shall be required to amend or repeal, or adopt any provision of this Certificate of Incorporation inconsistent with, Section 4.2, Section 4.3, Section 4.4, Section 6.1 , Section 7.3, Section 7.4, Section 7.5, Section 7.6, Section 7.8, Section 8.1, Section 8.2 or this Article IX; provided further, that (i) for so long as the KKR Director Quorum Requirement remains in effect, the affirmative vote of the holders of at least 75% of the voting power of the outstanding shares of capital stock of the Corporation entitled to vote generally in the election of Directors shall be required to amend or repeal, or adopt any provision of this Certificate of Incorporation inconsistent with Section 6.2, and (ii) any amendment (including by merger, consolidation or otherwise) to this Certificate of Incorporation that gives holders of the Class B Common Stock or Class C Common Stock (A) any rights to receive dividends (other than as set forth in the last sentence of Section 4.4(b) of Article IV) or any other kind of distribution, (B) any right to convert into or be exchanged for shares of Class A Common Stock or (C) any other economic rights (except for payments in cash in lieu of receipt of fractional shares of stock) shall, in addition to the vote of the holders of shares of any class or series of capital stock of the Corporation required by law or by this Certificate of Incorporation, also require the affirmative vote of the holders of a majority of the
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outstanding shares of Class A Common Stock voting separately as a series and the affirmative vote of the holders of a majority of the outstanding shares of Class D Common Stock voting separately as a series. If any provision or provisions of this Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any Person or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any sentence of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other Persons and circumstances shall not in any way be affected or impaired thereby. Each reference in this Certificate of Incorporation to any article, section or provision of the Bylaws, the Stockholders’ Agreement or the LLC Agreement, as applicable, shall include, without limitation, any equivalent provision and any such article, section or provision as renumbered as a result of any amendment alteration, change, repeal or adoption of any other provision thereof.
ARTICLE X
To the fullest extent permitted by the DGCL as it exists on the date hereof or as it may hereafter be amended, no Director or officer of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of his or her fiduciary duties as a director or officer. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a Director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. All references in this Article X to a Director shall also be deemed to refer to such other person or persons who, pursuant to a provision of this Certificate of Incorporation, exercise or perform any of the powers or duties otherwise conferred or imposed upon the Board of Directors by the DGCL. No amendment to, or modification or repeal of, this Article X shall adversely affect any right or protection of a Director or of any officer, employee or agent of the Corporation existing hereunder with respect to any act or omission occurring prior to such amendment, modification or repeal.
ARTICLE XI
Section 11.1 Corporate Opportunities. To the fullest extent permitted by the laws of the State of Delaware and in accordance with Section 122(17) of the DGCL (or any successor provision thereto), (i) the Corporation hereby renounces all interest and expectancy that it otherwise would be entitled to have in, and all rights to be offered an opportunity to participate in, any business opportunity that from time to time may be presented to KKR Related Parties or any Directors who are employees of or Affiliates of KKR Related Parties (other than any such Director who is also an employee of the Corporation or its subsidiaries) (each such Person, an “Exempt Person”); (ii) no Exempt Person will have any duty to refrain from (1) engaging in a corporate opportunity in the same or similar lines of business in which the Corporation or its subsidiaries from time to time is engaged or proposes to engage or (2) otherwise competing, directly or indirectly, with the Corporation or any of its subsidiaries; and (iii) if any Exempt Person acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity both for such Exempt Person or any of his or her respective Affiliates, on the one hand, and for the Corporation or its subsidiaries, on the other hand, such Exempt Person shall have no duty to communicate or offer such transaction or business opportunity to the Corporation or its subsidiaries and such Exempt Person or any of his or her respective Affiliates may take any and all such transactions or opportunities for itself or offer such transactions or opportunities to any other Person. Notwithstanding the foregoing, the preceding sentence of this Article XI shall not apply to any potential transaction or business opportunity that is expressly offered to any Exempt Person solely in his or her capacity as a Director, officer, employee or other service provider of the Corporation or its subsidiaries.
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To the fullest extent permitted by the laws of the State of Delaware, no potential transaction or business opportunity may be deemed to be a corporate opportunity of the Corporation or its subsidiaries unless (i) the Corporation or its subsidiaries would be permitted to undertake such transaction or opportunity in accordance with this Certificate of Incorporation, (ii) the Corporation or its subsidiaries at such time have sufficient financial resources to undertake such transaction or opportunity, (iii) the Corporation or its subsidiaries have an interest or expectancy in such transaction or opportunity and (iv) such transaction or opportunity would be in the same or similar line of business in which the Corporation or its subsidiaries are then engaged or a line of business that is reasonably related to, or a reasonable extension of, such line of business.
ARTICLE XII
Section 12.1 Section 203 of the DGCL. The Corporation expressly elects not to be governed by Section 203 of the DGCL and the restrictions and limitations set forth therein.
Section 12.2 Interested Stockholder Transactions. Notwithstanding anything to the contrary set forth in this Certificate of Incorporation, the Corporation shall not engage in any Business Combination (as defined below) at any point in time at which any of the Corporation’s Class A Common Stock, Class B Common Stock, Class C Common Stock or Class D Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act with any Interested Stockholder (as defined below) for a period of three years following the time that such stockholder became an Interested Stockholder, unless:
Section 12.3 Definitions. As used in this Certificate of Incorporation, the following terms shall have the following meaning:
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IN WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed on this day of , 2024.
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