1009-00003 · Client 1009 · Corporate Governance

amended-restated-certificate-of-incorporation-form.docx DOCUMENT M&A / Corporate

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AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

[INSERT FULL LEGAL NAME OF COMBINED COMPANY]

(a Delaware corporation)

Pursuant to Sections 242, 245, and 388 of the General Corporation Law of the State of Delaware

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF [INSERT FULL LEGAL NAME OF COMBINED COMPANY]

[Insert name of authorized officer executing the certificate], the [Insert title] of [Insert Full Legal Name of Combined Company] (the "Corporation"), a corporation organized and existing under the General Corporation Law of the State of Delaware (the "DGCL"), does hereby certify as follows:

1. The name of the Corporation is [Insert Full Legal Name of Combined Company]. The original certificate of incorporation of the Corporation (as it may have been amended or supplemented from time to time prior to the date hereof, the "Original Certificate") was filed with the Secretary of State of the State of Delaware on [Insert original filing date] under the name [Insert Prior Name of Corporation].

2. This Amended and Restated Certificate of Incorporation (this "Certificate"), which restates, integrates, and further amends the provisions of the Original Certificate as heretofore in effect, was duly adopted in accordance with the provisions of Sections 242, 245, and 388 of the DGCL and has been duly approved by the Board of Directors and the stockholders of the Corporation in accordance with the applicable provisions of the DGCL.

3. This Certificate shall become effective upon filing with the Secretary of State of the State of Delaware [or at such later time as specified: __].

4. The text of the Original Certificate is hereby restated, integrated, and amended in its entirety to read as follows:

ARTICLE I

NAME. The name of the corporation is [Insert Full Legal Name] (the "Corporation").

ARTICLE II

REGISTERED OFFICE AND REGISTERED AGENT

The registered office of the Corporation in the State of Delaware is located at [Insert Address], in the City of [Insert City], County of [Insert County], State of Delaware 19[_]. The name of the Corporation's registered agent at such address is [Insert Registered Agent Name]. The registered agent is authorized to act as a registered agent in the State of Delaware in compliance with Section 131 of the DGCL.

ARTICLE III

PURPOSE. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. The Corporation shall have all powers necessary or convenient to carry out and effectuate the purposes and provisions of this Certificate, including, without limitation, all powers granted to corporations generally under the DGCL.

ARTICLE IV

AUTHORIZED CAPITAL STOCK

Section 4.1 — Authorized Shares.

The total number of shares of all classes of capital stock that the Corporation is authorized to issue is [Insert Total Number] shares, consisting of:

(a) [Insert Number] shares of Common Stock, par value $[Insert Par Value] per share ("Common Stock"); and

(b) [Insert Number] shares of Preferred Stock, par value $[Insert Par Value] per share ("Preferred Stock").

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 affirmative vote of the holders of a majority in voting power of the outstanding shares of capital stock of the Corporation entitled to vote thereon, irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of either Common Stock or Preferred Stock voting separately as a class shall be required therefor, unless a vote of any such holders is expressly required pursuant to this Certificate (including any certificate of designation relating to any series of Preferred Stock).

Section 4.2 — Common Stock.

Section 4.2.1 — Voting Rights. Each share of Common Stock shall entitle the holder thereof to [Insert Number, typically one (1)] vote on each matter properly submitted to a vote of the stockholders of the Corporation. Except as otherwise required by law or as provided in this Certificate (including any certificate of designation relating to any series of Preferred Stock), the holders of shares of Common Stock shall vote together as a single class on all matters submitted to a vote of stockholders. There shall be no cumulative voting with respect to the election of directors or any other matter.

Section 4.2.2 — Dividends. Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of stock having a preference over or the right to participate with the Common Stock with respect to the payment of dividends, dividends may be declared and paid on the Common Stock at such times and in such amounts as the Board of Directors of the Corporation (the "Board of Directors") in its discretion shall determine. The holders of Common Stock shall be entitled to receive dividends and other distributions in cash, stock, or property of the Corporation when, as, and if declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefor. The Board of Directors shall have sole and absolute discretion with respect to the declaration of dividends and other distributions, and no holder of Common Stock shall have any right to receive any dividend or other distribution except as may be declared by the Board of Directors.

Section 4.2.3 — Liquidation Rights. In the event of any voluntary or involuntary liquidation, dissolution, or winding up of the affairs of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and after payment or provision for payment of any liquidation preference in full on all shares of Preferred Stock that are entitled thereto, the holders of shares of Common Stock shall be entitled to share ratably in the remaining assets of the Corporation available for distribution to its stockholders, in proportion to the number of shares of Common Stock held by each such holder. For the avoidance of doubt, a merger, consolidation, or other similar transaction involving the Corporation, or a sale, lease, exchange, or transfer of all or substantially all of the Corporation's assets, shall not, in and of itself, be deemed a liquidation, dissolution, or winding up of the Corporation for purposes of this Section 4.2.3.

Section 4.2.4 — No Preemptive Rights. No holder of shares of Common Stock shall, as such holder, have any preemptive right to subscribe for, purchase, or otherwise acquire any shares of any class or series of capital stock of the Corporation, whether now or hereafter authorized, which may at any time be offered, sold, or otherwise disposed of or issued by the Corporation, nor shall any holder of Common Stock have any right of subscription to any thereof.

Section 4.3 — Preferred Stock.

Section 4.3.1 — Blank Check Preferred. The Board of Directors is hereby expressly authorized, by resolution or resolutions, to provide, out of the unissued shares of Preferred Stock, for one or more series of Preferred Stock and, with respect to each such series, to fix the number of shares constituting such series, the designation of such series, and the powers (including voting powers), preferences, and relative, participating, optional, or other special rights, and the qualifications, limitations, or restrictions thereof, of the shares of such series of Preferred Stock. The powers, preferences, and relative, participating, optional, and other special rights of each series of Preferred Stock, and the qualifications, limitations, and restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. Without limiting the generality of the foregoing, the Board of Directors is authorized to provide, by resolution or resolutions, with respect to any series of Preferred Stock:

(a) the designation of such series, the number of shares to constitute such series (which number may from time to time be increased or decreased by the Board of Directors, notwithstanding that shares of such series may then be outstanding, unless otherwise provided in the certificate of designation with respect to such series), and the stated value, if any, of the shares of such series;

(b) whether the shares of such series shall have voting rights (in addition to any voting rights required by applicable law), and, if so, the terms and conditions of such voting rights, which may include, without limitation, the right to vote as a separate class either alone or together with the holders of one or more other series of Preferred Stock or one or more classes of Common Stock;

(c) the dividends, if any, payable on shares of such series, whether any such dividends shall be cumulative or noncumulative, the conditions and dates upon which such dividends shall be payable, the preference or relation that such dividends shall bear to dividends payable on any other class or series of the Corporation's capital stock, and whether such dividends shall be payable in cash, shares of capital stock, or other property;

(d) whether the shares of such series shall be subject to redemption (including, without limitation, by operation of a sinking fund) by the Corporation or the holders thereof, and, if so, the price or prices at which, the form of payment of such price or prices (which may be payable in cash, shares of capital stock, or other property), and the terms and conditions upon which, shares of such series may be redeemed;

(e) the amount payable on shares of such series, and the rights of holders thereof, in the event of any voluntary or involuntary liquidation, dissolution, or winding up of the affairs of the Corporation;

(f) whether the shares of such series shall be convertible into, or exchangeable for, shares of any other class or series of capital stock of the Corporation or any other security (including, without limitation, Common Stock), and, if so, the price or prices, the rate or rates, or the ratio or ratios of conversion or exchange, and the method, if any, of adjusting the same;

(g) the right, if any, to subscribe for or to purchase any securities of the Corporation or any other entity;

(h) the terms and conditions, if any, of any purchase, retirement, or sinking fund, which may be provided for the shares of such series; and

(i) any other powers, preferences, rights, and qualifications, limitations, and restrictions of such series.

No vote of the holders of shares of Preferred Stock or Common Stock shall be a prerequisite to the designation or issuance of shares of any series of Preferred Stock authorized by and complying with the conditions of this Certificate, the right to have such vote being expressly waived by all present and future holders of the Corporation's capital stock, except as may be required by the applicable rules and regulations of any stock exchange on which the Corporation's securities are listed.

Section 4.4 — No Fractional Shares.

The Corporation shall not issue fractional shares of capital stock. In lieu of any fractional share to which a holder would otherwise be entitled, the Corporation shall, in the sole discretion of the Board of Directors, either (a) pay to such holder an amount in cash equal to the fair market value of such fractional share (as determined in good faith by the Board of Directors) or (b) round down to the nearest whole share. No holder of a fractional interest in a share of capital stock shall be entitled to exercise any voting, dividend, or other right with respect to such fractional interest except to the extent that such fractional interest may be aggregated with other fractional interests held by such holder to constitute a whole share.

ARTICLE V

BOARD OF DIRECTORS

Section 5.1 — General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority expressly conferred upon the Board of Directors by statute, this Certificate, or the Bylaws of the Corporation (the "Bylaws"), the Board of Directors is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Certificate, and the Bylaws.

Section 5.2 — Number of Directors. The number of directors constituting the Board of Directors shall be fixed exclusively by resolution of the Board of Directors from time to time, subject to a minimum of [Insert Minimum Number] and a maximum of [Insert Maximum Number]. No decrease in the authorized number of directors constituting the Board of Directors shall shorten the term of any incumbent director.

Section 5.3 — Classified Board / Staggered Terms.

[Option A — Classified Board:]

The Board of Directors shall be divided into three (3) classes, designated as Class I, Class II, and Class III, as nearly equal in number as reasonably possible. The Board of Directors may assign members of the Board of Directors already in office to such classes at the time such classification becomes effective. The initial assignment of directors to each class shall be made by the Board of Directors.

(a) Each Class I director shall serve for an initial term expiring at the [Insert Ordinal] annual meeting of stockholders of the Corporation following the effectiveness of this Certificate;

(b) Each Class II director shall serve for an initial term expiring at the [Insert Ordinal] annual meeting of stockholders of the Corporation following the effectiveness of this Certificate; and

(c) Each Class III director shall serve for an initial term expiring at the [Insert Ordinal] annual meeting of stockholders of the Corporation following the effectiveness of this Certificate.

At each annual meeting of stockholders beginning with the first annual meeting of stockholders following the effectiveness of this Certificate, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term and shall hold office until the third annual meeting of stockholders following their election and until their respective successors shall have been duly elected and qualified, or until their earlier death, resignation, disqualification, or removal. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any individual director elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class.

[Option B — Unclassified Board / Annual Elections:]

Each director shall be elected at each annual meeting of stockholders of the Corporation and shall hold office until the next annual meeting of stockholders and until his or her successor shall have been duly elected and qualified, or until his or her earlier death, resignation, disqualification, or removal. Directors need not be stockholders of the Corporation.

Section 5.4 — Removal of Directors.

[If classified board — Option A:] Any director, or the entire Board of Directors, may be removed from office at any time, but only for cause, and only by the affirmative vote of the holders of at least [Insert Percentage]% of the voting power of all then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. For purposes of this Section 5.4, "cause" shall mean (i) a conviction of, or plea of nolo contendere to, a felony, (ii) a finding by a court of competent jurisdiction (which finding is not subject to further appeal) that such director committed acts of fraud or dishonesty resulting in material damage to the Corporation or its subsidiaries, or (iii) a willful and continuing failure to perform the duties of a director of the Corporation after written demand for performance has been delivered to such director specifically identifying the manner in which it is alleged that such director has not performed his or her duties.

[If unclassified board — Option B:] Any director, or the entire Board of Directors, may be removed from office at any time, with or without cause, by the affirmative vote of the holders of a majority of the voting power of all then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

Section 5.5 — Vacancies and Newly Created Directorships. Subject to the rights, if any, of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal, or any other cause, and any newly created directorships resulting from any increase in the number of directors, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by the sole remaining director, and shall not be filled by the stockholders. Any director elected to fill a vacancy shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred (or, if the Board of Directors is not classified, until the next annual meeting of stockholders) and until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal. No decrease in the authorized number of directors shall shorten the term of any incumbent director.

Section 5.6 — Election of Directors; Ballot. Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.

ARTICLE VI

LIMITATION ON LIABILITY OF DIRECTORS AND OFFICERS

Section 6.1 — Director Exculpation. To the fullest extent permitted by the DGCL, as it now exists or as it may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader exculpation rights than the DGCL permitted the Corporation to provide prior to such amendment), no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that nothing contained herein shall eliminate or limit the liability of a director:

(a) for any breach of the director's duty of loyalty to the Corporation or its stockholders;

(b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

(d) for any transaction from which the director derived an improper personal benefit.

Section 6.2 — Officer Exculpation. To the fullest extent permitted by the DGCL, as it now exists or as it may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader exculpation rights than the DGCL permitted the Corporation to provide prior to such amendment), no officer of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as an officer; provided, however, that nothing contained herein shall eliminate or limit the liability of an officer:

(a) for any breach of the officer's duty of loyalty to the Corporation or its stockholders;

(b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;

(d) in any action by or in the right of the Corporation (i.e., a derivative action).

For purposes of this Section 6.2, "officer" shall have the meaning given to such term by Section 102(b)(7) of the DGCL, as it may be amended from time to time.

Section 6.3 — No Retroactive Impairment. No amendment to, repeal of, or adoption of any provision of this Certificate inconsistent with this Article VI shall apply to, or have any effect on, the liability or alleged liability of any director or officer of the Corporation for or with respect to any acts or omissions of such director or officer occurring prior to such amendment, repeal, or adoption. If the DGCL is amended after the date of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

ARTICLE VII

INDEMNIFICATION. Section 7.1 — Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL, as it now exists or as it may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than the DGCL permitted the Corporation to provide prior to such amendment), any person (an "Indemnitee") who was or is a party to or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a "Proceeding"), by reason of the fact that such person is or was, or has agreed to become, a director or officer of the Corporation, or while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, member, manager, trustee, employee, or agent of another corporation, partnership, joint venture, limited liability company, trust, or other enterprise (including service with respect to any employee benefit plan), against all expenses (including attorneys' fees), judgments, fines (including ERISA excise taxes and penalties), and amounts paid in settlement actually and reasonably incurred by or on behalf of such Indemnitee in connection with such Proceeding and any appeal therefrom.

Notwithstanding the foregoing, except as provided in Section 7.2 and Section 7.3 of this Article VII, the Corporation shall be required to indemnify an Indemnitee in connection with a Proceeding (or part thereof) commenced by such Indemnitee only if the commencement of such Proceeding (or part thereof) by the Indemnitee was authorized by the Board of Directors of the Corporation.

Section 7.2 — Advancement of Expenses. The Corporation shall, to the fullest extent permitted by the DGCL, as it now exists or as it may hereafter be amended, pay the expenses (including attorneys' fees) incurred by an Indemnitee in defending or otherwise participating in any Proceeding in advance of its final disposition; provided, however, that, to the extent required by the DGCL, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such Indemnitee is not entitled to be indemnified for such expenses under this Article VII or otherwise. The Corporation may, by action of the Board of Directors, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification and advancement of expenses of directors and officers.

Section 7.3 — Non-Exclusivity of Rights. The rights to indemnification and advancement of expenses conferred by this Article VII shall not be exclusive of any other rights to which any person seeking indemnification or advancement of expenses may be entitled under any statute, this Certificate, the Bylaws, any agreement, any vote of stockholders or disinterested directors, or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. The Corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees, or agents respecting indemnification and advancement of expenses, to the fullest extent not prohibited by the DGCL or other applicable law.

Section 7.4 — Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, member, manager, trustee, employee, or agent of another corporation, partnership, joint venture, limited liability company, trust, or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of the DGCL.

Section 7.5 — Survival. The rights to indemnification and advancement of expenses conferred by this Article VII shall continue as to an Indemnitee who has ceased to be a director, officer, employee, or agent of the Corporation and shall inure to the benefit of the heirs, executors, and administrators of such Indemnitee. Any amendment to, repeal of, or adoption of any provision of this Certificate inconsistent with this Article VII shall not adversely affect any right or protection of any Indemnitee existing at the time of such amendment, repeal, or adoption with respect to any acts or omissions occurring prior to such amendment, repeal, or adoption.

Section 7.6 — Severability. If any provision or provisions of this Article VII shall be held to be invalid, illegal, or unenforceable for any reason whatsoever: (a) the validity, legality, and enforceability of the remaining provisions of this Article VII shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VII (including, without limitation, each such portion of this Article VII containing any such provision held to be invalid, illegal, or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal, or unenforceable.

ARTICLE VIII

BYLAWS. In furtherance and not in limitation of the powers conferred upon the Board of Directors by the DGCL, the Board of Directors is hereby expressly authorized to adopt, amend, alter, or repeal the Bylaws of the Corporation by the affirmative vote of a majority of the total number of directors then in office. Any adoption, amendment, alteration, or repeal of the Bylaws by the Board of Directors shall require the approval of a majority of the authorized number of directors.

In addition to any vote of the holders of any class or series of stock of the Corporation required by applicable law or by this Certificate (including any certificate of designation relating to any series of Preferred Stock), the Bylaws may also be adopted, amended, altered, or repealed by the affirmative vote of the holders of at least [Insert Percentage, e.g., sixty-six and two-thirds percent (66⅔%)] of the voting power of all then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. No Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board of Directors that would have been valid if such Bylaws had not been adopted.

ARTICLE IX

STOCKHOLDER MATTERS. Section 9.1 — No Written Consent. No action that is required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders may be effected by written consent of stockholders in lieu of a meeting of stockholders, unless such action is first recommended or approved by the Board of Directors. [Alternative: Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of the stockholders of the Corporation and may not be effected by written consent of stockholders in lieu of a meeting of stockholders.] Any action taken by stockholders of the Corporation that is inconsistent with this Section 9.1 shall be void and of no effect.

Section 9.2 — Special Meetings. Special meetings of stockholders of the Corporation may be called only by the Board of Directors, the Chairperson of the Board of Directors, or the Chief Executive Officer of the Corporation, and shall not be called by any other person. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. The Board of Directors may postpone, reschedule, or cancel any previously scheduled special meeting of stockholders at any time, before or after the notice for such meeting has been sent to the stockholders.

Section 9.3 — Supermajority Voting Provisions for Amendments to Specified Articles. Notwithstanding any other provision of this Certificate 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 any class or series of the stock of this Corporation required by law or by this Certificate (including any certificate of designation relating to any series of Preferred Stock), the affirmative vote of the holders of at least [Insert Percentage]% of the voting power of all then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter, repeal, or adopt any provision inconsistent with Article V (Board of Directors), Article VI (Limitation on Liability of Directors and Officers), Article VII (Indemnification), Article VIII (Bylaws), this Article IX (Stockholder Matters), Article X (Corporate Opportunities), Article XI (Exclusive Forum), or this Section 9.3.

ARTICLE X

CORPORATE OPPORTUNITIES. To the fullest extent permitted by Section 122(17) of the DGCL, the Corporation hereby renounces and waives any interest or expectancy of the Corporation in, and any right of the Corporation to be offered an opportunity to participate in, any business opportunity that may from time to time be presented to or become known to [Insert Designated Persons/Entities, e.g., the Sponsor, its affiliates, or any non-employee director] (each, an "Exempt Person") in a capacity other than as a director or officer of the Corporation, even if such business opportunity is one that the Corporation might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so. No Exempt Person shall have any duty to communicate or offer any such business opportunity to the Corporation, and no Exempt Person shall be liable to the Corporation or any of its stockholders for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such Exempt Person pursues or acquires any such business opportunity, directs such business opportunity to another person or entity, or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation.

Notwithstanding the foregoing, an Exempt Person who is a director or officer of the Corporation shall not be relieved of his or her obligation under this Article X with respect to a business opportunity that is expressly offered to such Exempt Person solely in his or her capacity as a director or officer of the Corporation, and the Corporation does not renounce its interest in any such opportunity.

Any person purchasing or otherwise acquiring or holding any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article X. Neither the amendment, modification, nor repeal of this Article X, nor the adoption of any provision of this Certificate inconsistent with this Article X, shall eliminate or reduce the effect of this Article X in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit, or claim that, but for this Article X, would accrue or arise, prior to such amendment, modification, repeal, or adoption.

ARTICLE XI

EXCLUSIVE FORUM. Section 11.1 — Delaware Forum Selection (State Law Claims). Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, the Superior Court of the State of Delaware, or, if the Superior Court of the State of Delaware also does not have jurisdiction, the United States District Court for the District of Delaware) shall be the sole and exclusive forum for each of the following types of actions or proceedings under Delaware statutory or common law:

(a) any derivative action or proceeding brought on behalf of the Corporation;

(b) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, employee, or agent of the Corporation to the Corporation or the Corporation's stockholders;

(c) any action asserting a claim arising pursuant to any provision of the DGCL, this Certificate (including, for the avoidance of doubt, any certificate of designation relating to any series of Preferred Stock), or the Bylaws (as any of the foregoing may be amended, restated, modified, supplemented, or waived from time to time);

(d) any action to interpret, apply, enforce, or determine the validity of this Certificate or the Bylaws;

(e) any action asserting a claim against the Corporation or any current or former director, officer, or other employee of the Corporation governed by the internal affairs doctrine; and

(f) any action asserting an "internal corporate claim" as that term is defined in Section 115 of the DGCL.

This Section 11.1 shall not apply to any action or proceeding asserting a cause of action arising under the Securities Act of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of 1934, as amended (the "Exchange Act").

Section 11.2 — Federal Forum Selection (Securities Act Claims). Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. For the avoidance of doubt, this Section 11.2 is intended to benefit and may be enforced by the Corporation, its officers, directors, and other employees or agents, and the underwriters, placement agents, and their respective affiliates in any offering giving rise to such complaint. This Section 11.2 shall not apply to claims arising under the Exchange Act, for which there is exclusive federal jurisdiction pursuant to Section 27 of the Exchange Act.

Section 11.3 — Consent to Jurisdiction; Notice. Any person or entity purchasing or otherwise acquiring or holding any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article XI. If any action the subject matter of which is within the scope of Section 11.1 or Section 11.2 above is filed in a court other than the applicable courts specified above (each, a "Foreign Action"), such person or entity shall be deemed to have consented to (a) the personal jurisdiction of the applicable courts specified in Section 11.1 and Section 11.2 above in connection with any action brought in any such court to enforce Section 11.1 or Section 11.2 above and (b) having service of process made upon such person or entity in any such enforcement action by service upon such person's or entity's counsel in the Foreign Action as agent for such person or entity.

Section 11.4 — Severability. If any provision of this Article XI, or the application of any such provision to any person or entity or any circumstance, shall be held to be invalid, illegal, or unenforceable in any respect by any court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Article XI, and such invalid, illegal, or unenforceable provision shall be modified, to the minimum extent necessary, to give effect to the original intent of the provision.

ARTICLE XII

AMENDMENT. The Corporation reserves the right to amend, alter, change, or repeal any provision contained in this Certificate in the manner now or hereafter prescribed by the DGCL and this Certificate, and all rights and powers conferred herein on stockholders, directors, and officers are granted subject to this reserved power; provided, however, that, notwithstanding any other provision of this Certificate 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 any class or series of the stock of this Corporation required by law or by this Certificate (including any certificate of designation relating to any series of Preferred Stock), the affirmative vote of the holders of at least the percentage of outstanding voting power specified in Section 9.3 of Article IX of this Certificate shall be required to amend, alter, repeal, or adopt any provision inconsistent with those Articles of this Certificate specified in Section 9.3 of Article IX.

ARTICLE XIII

SEVERABILITY. If any provision of this Certificate becomes or is declared on any ground by a court of competent jurisdiction to be illegal, unenforceable, or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Certificate, and the court shall replace such illegal, void, or unenforceable provision of this Certificate with a valid and enforceable provision that most accurately reflects the Corporation's intent, as manifested herein, in adopting the provision held to be illegal, void, or unenforceable. The balance of this Certificate shall be enforceable in accordance with its terms. In the event that a court of competent jurisdiction determines that any provision of this Certificate is invalid, illegal, or unenforceable but that by limiting such provision the provision would become valid, legal, and enforceable, such provision shall be deemed to be so limited and shall be enforced to the maximum extent permitted by applicable law.

ARTICLE XIV

DOMESTICATION. This Certificate is being filed in connection with the domestication of [Insert Prior Entity Name], a [Insert Prior Jurisdiction] [Insert Entity Type] (the "Prior Entity"), to the State of Delaware pursuant to Section 388 of the DGCL. The Prior Entity was originally formed or incorporated under the laws of [Insert Prior Jurisdiction] on [Insert Date of Original Formation]. This Certificate is being filed simultaneously with a Certificate of Corporate Domestication as required by Section 388 of the DGCL. Upon the effectiveness of this Certificate and the Certificate of Corporate Domestication, the Prior Entity shall be domesticated as a corporation organized under the laws of the State of Delaware, and all of its outstanding shares or other equity interests shall be converted or exchanged in accordance with the terms of the applicable transaction agreement, and the Corporation shall thereupon and thereafter be subject to all of the provisions of the DGCL, except that notwithstanding Section 106 of the DGCL, the existence of the Corporation shall be deemed to have commenced on the date the Prior Entity commenced its existence in its jurisdiction of formation.

[Note: If this Article XIV is not applicable because the Corporation was originally formed in Delaware, this Article may be deleted in its entirety, and subsequent Articles, if any, renumbered accordingly.]

[Remainder of Page Intentionally Left Blank] [Signature Page Follows]

IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Certificate of Incorporation as of [Insert Date].

[INSERT FULL LEGAL NAME OF CORPORATION]

By: ________

Name: [Insert Name of Authorized Officer]

Title: [Insert Title]

Date: ________

EXHIBIT AND SCHEDULE PLACEHOLDERS

The following exhibits or schedules may be appended to this Certificate to the extent required by the applicable transaction documents or as otherwise determined by counsel:

Exhibit A — Initial Classification of Directors (if applicable under Article V, Section 5.3, Option A)

Exhibit B — Certificate of Designation of Series [__] Preferred Stock (if applicable; to be filed as a separate instrument with the Secretary of State of the State of Delaware)

Exhibit C — Certificate of Corporate Domestication (if applicable under Article XIV; to be filed as a separate instrument with the Secretary of State of the State of Delaware pursuant to Section 388 of the DGCL)

Note: Certificates of designation for series of Preferred Stock are customarily filed as separate instruments with the Secretary of State of the State of Delaware and are not attached as exhibits to the Amended and Restated Certificate of Incorporation. The placeholders above are included for reference purposes only. Confirm with counsel whether any ancillary filings need to be prepared and filed concurrently with this Certificate.

END OF FORM

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
[INSERT FULL LEGAL NAME OF COMBINED COMPANY]
(a Delaware corporation)
Pursuant to Sections 242, 245, and 388 of the General Corporation Law of the State of Delaware
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF [INSERT FULL LEGAL NAME OF COMBINED COMPANY]
[Insert name of authorized officer executing the certificate], the [Insert title] of [Insert Full Legal Name of Combined Company] (the "Corporation"), a corporation organized and existing under the General Corporation Law of the State of Delaware (the "DGCL"), does hereby certify as follows:
1.  The name of the Corporation is [Insert Full Legal Name of Combined Company]. The original certificate of incorporation of the Corporation (as it may have been amended or supplemented from time to time prior to the date hereof, the "Original Certificate") was filed with the Secretary of State of the State of Delaware on [Insert original filing date] under the name [Insert Prior Name of Corporation].
2.  This Amended and Restated Certificate of Incorporation (this "Certificate"), which restates, integrates, and further amends the provisions of the Original Certificate as heretofore in effect, was duly adopted in accordance with the provisions of Sections 242, 245, and 388 of the DGCL and has been duly approved by the Board of Directors and the stockholders of the Corporation in accordance with the applicable provisions of the DGCL.
3.  This Certificate shall become effective upon filing with the Secretary of State of the State of Delaware [or at such later time as specified: __].
4.  The text of the Original Certificate is hereby restated, integrated, and amended in its entirety to read as follows:
ARTICLE I
NAME.  The name of the corporation is [Insert Full Legal Name] (the "Corporation").
ARTICLE II
REGISTERED OFFICE AND REGISTERED AGENT
The registered office of the Corporation in the State of Delaware is located at [Insert Address], in the City of [Insert City], County of [Insert County], State of Delaware 19[_]. The name of the Corporation's registered agent at such address is [Insert Registered Agent Name]. The registered agent is authorized to act as a registered agent in the State of Delaware in compliance with Section 131 of the DGCL.
ARTICLE III
PURPOSE.  The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. The Corporation shall have all powers necessary or convenient to carry out and effectuate the purposes and provisions of this Certificate, including, without limitation, all powers granted to corporations generally under the DGCL.
ARTICLE IV
AUTHORIZED CAPITAL STOCK
Section 4.1 — Authorized Shares.
The total number of shares of all classes of capital stock that the Corporation is authorized to issue is [Insert Total Number] shares, consisting of:
(a) [Insert Number] shares of Common Stock, par value $[Insert Par Value] per share ("Common Stock"); and
(b) [Insert Number] shares of Preferred Stock, par value $[Insert Par Value] per share ("Preferred Stock").
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 affirmative vote of the holders of a majority in voting power of the outstanding shares of capital stock of the Corporation entitled to vote thereon, irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of either Common Stock or Preferred Stock voting separately as a class shall be required therefor, unless a vote of any such holders is expressly required pursuant to this Certificate (including any certificate of designation relating to any series of Preferred Stock).
Section 4.2 — Common Stock.
Section 4.2.1 — Voting Rights. Each share of Common Stock shall entitle the holder thereof to [Insert Number, typically one (1)] vote on each matter properly submitted to a vote of the stockholders of the Corporation. Except as otherwise required by law or as provided in this Certificate (including any certificate of designation relating to any series of Preferred Stock), the holders of shares of Common Stock shall vote together as a single class on all matters submitted to a vote of stockholders. There shall be no cumulative voting with respect to the election of directors or any other matter.
Section 4.2.2 — Dividends. Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of stock having a preference over or the right to participate with the Common Stock with respect to the payment of dividends, dividends may be declared and paid on the Common Stock at such times and in such amounts as the Board of Directors of the Corporation (the "Board of Directors") in its discretion shall determine. The holders of Common Stock shall be entitled to receive dividends and other distributions in cash, stock, or property of the Corporation when, as, and if declared thereon by the Board of Directors from time to time out of assets or funds of the Corporation legally available therefor. The Board of Directors shall have sole and absolute discretion with respect to the declaration of dividends and other distributions, and no holder of Common Stock shall have any right to receive any dividend or other distribution except as may be declared by the Board of Directors.
Section 4.2.3 — Liquidation Rights. In the event of any voluntary or involuntary liquidation, dissolution, or winding up of the affairs of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and after payment or provision for payment of any liquidation preference in full on all shares of Preferred Stock that are entitled thereto, the holders of shares of Common Stock shall be entitled to share ratably in the remaining assets of the Corporation available for distribution to its stockholders, in proportion to the number of shares of Common Stock held by each such holder. For the avoidance of doubt, a merger, consolidation, or other similar transaction involving the Corporation, or a sale, lease, exchange, or transfer of all or substantially all of the Corporation's assets, shall not, in and of itself, be deemed a liquidation, dissolution, or winding up of the Corporation for purposes of this Section 4.2.3.
Section 4.2.4 — No Preemptive Rights. No holder of shares of Common Stock shall, as such holder, have any preemptive right to subscribe for, purchase, or otherwise acquire any shares of any class or series of capital stock of the Corporation, whether now or hereafter authorized, which may at any time be offered, sold, or otherwise disposed of or issued by the Corporation, nor shall any holder of Common Stock have any right of subscription to any thereof.
Section 4.3 — Preferred Stock.
Section 4.3.1 — Blank Check Preferred. The Board of Directors is hereby expressly authorized, by resolution or resolutions, to provide, out of the unissued shares of Preferred Stock, for one or more series of Preferred Stock and, with respect to each such series, to fix the number of shares constituting such series, the designation of such series, and the powers (including voting powers), preferences, and relative, participating, optional, or other special rights, and the qualifications, limitations, or restrictions thereof, of the shares of such series of Preferred Stock. The powers, preferences, and relative, participating, optional, and other special rights of each series of Preferred Stock, and the qualifications, limitations, and restrictions thereof, if any, may differ from those of any and all other series at any time outstanding. Without limiting the generality of the foregoing, the Board of Directors is authorized to provide, by resolution or resolutions, with respect to any series of Preferred Stock:
(a) the designation of such series, the number of shares to constitute such series (which number may from time to time be increased or decreased by the Board of Directors, notwithstanding that shares of such series may then be outstanding, unless otherwise provided in the certificate of designation with respect to such series), and the stated value, if any, of the shares of such series;
(b) whether the shares of such series shall have voting rights (in addition to any voting rights required by applicable law), and, if so, the terms and conditions of such voting rights, which may include, without limitation, the right to vote as a separate class either alone or together with the holders of one or more other series of Preferred Stock or one or more classes of Common Stock;
(c) the dividends, if any, payable on shares of such series, whether any such dividends shall be cumulative or noncumulative, the conditions and dates upon which such dividends shall be payable, the preference or relation that such dividends shall bear to dividends payable on any other class or series of the Corporation's capital stock, and whether such dividends shall be payable in cash, shares of capital stock, or other property;
(d) whether the shares of such series shall be subject to redemption (including, without limitation, by operation of a sinking fund) by the Corporation or the holders thereof, and, if so, the price or prices at which, the form of payment of such price or prices (which may be payable in cash, shares of capital stock, or other property), and the terms and conditions upon which, shares of such series may be redeemed;
(e) the amount payable on shares of such series, and the rights of holders thereof, in the event of any voluntary or involuntary liquidation, dissolution, or winding up of the affairs of the Corporation;
(f) whether the shares of such series shall be convertible into, or exchangeable for, shares of any other class or series of capital stock of the Corporation or any other security (including, without limitation, Common Stock), and, if so, the price or prices, the rate or rates, or the ratio or ratios of conversion or exchange, and the method, if any, of adjusting the same;
(g) the right, if any, to subscribe for or to purchase any securities of the Corporation or any other entity;
(h) the terms and conditions, if any, of any purchase, retirement, or sinking fund, which may be provided for the shares of such series; and
(i) any other powers, preferences, rights, and qualifications, limitations, and restrictions of such series.
No vote of the holders of shares of Preferred Stock or Common Stock shall be a prerequisite to the designation or issuance of shares of any series of Preferred Stock authorized by and complying with the conditions of this Certificate, the right to have such vote being expressly waived by all present and future holders of the Corporation's capital stock, except as may be required by the applicable rules and regulations of any stock exchange on which the Corporation's securities are listed.
Section 4.4 — No Fractional Shares.
The Corporation shall not issue fractional shares of capital stock. In lieu of any fractional share to which a holder would otherwise be entitled, the Corporation shall, in the sole discretion of the Board of Directors, either (a) pay to such holder an amount in cash equal to the fair market value of such fractional share (as determined in good faith by the Board of Directors) or (b) round down to the nearest whole share. No holder of a fractional interest in a share of capital stock shall be entitled to exercise any voting, dividend, or other right with respect to such fractional interest except to the extent that such fractional interest may be aggregated with other fractional interests held by such holder to constitute a whole share.
ARTICLE V
BOARD OF DIRECTORS
Section 5.1 — General Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. In addition to the powers and authority expressly conferred upon the Board of Directors by statute, this Certificate, or the Bylaws of the Corporation (the "Bylaws"), the Board of Directors is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Certificate, and the Bylaws.
Section 5.2 — Number of Directors. The number of directors constituting the Board of Directors shall be fixed exclusively by resolution of the Board of Directors from time to time, subject to a minimum of [Insert Minimum Number] and a maximum of [Insert Maximum Number]. No decrease in the authorized number of directors constituting the Board of Directors shall shorten the term of any incumbent director.
Section 5.3 — Classified Board / Staggered Terms.
[Option A — Classified Board:]
The Board of Directors shall be divided into three (3) classes, designated as Class I, Class II, and Class III, as nearly equal in number as reasonably possible. The Board of Directors may assign members of the Board of Directors already in office to such classes at the time such classification becomes effective. The initial assignment of directors to each class shall be made by the Board of Directors.
(a) Each Class I director shall serve for an initial term expiring at the [Insert Ordinal] annual meeting of stockholders of the Corporation following the effectiveness of this Certificate;
(b) Each Class II director shall serve for an initial term expiring at the [Insert Ordinal] annual meeting of stockholders of the Corporation following the effectiveness of this Certificate; and
(c) Each Class III director shall serve for an initial term expiring at the [Insert Ordinal] annual meeting of stockholders of the Corporation following the effectiveness of this Certificate.
At each annual meeting of stockholders beginning with the first annual meeting of stockholders following the effectiveness of this Certificate, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term and shall hold office until the third annual meeting of stockholders following their election and until their respective successors shall have been duly elected and qualified, or until their earlier death, resignation, disqualification, or removal. If the number of directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any individual director elected to fill a vacancy resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class.
[Option B — Unclassified Board / Annual Elections:]
Each director shall be elected at each annual meeting of stockholders of the Corporation and shall hold office until the next annual meeting of stockholders and until his or her successor shall have been duly elected and qualified, or until his or her earlier death, resignation, disqualification, or removal. Directors need not be stockholders of the Corporation.
Section 5.4 — Removal of Directors.
[If classified board — Option A:] Any director, or the entire Board of Directors, may be removed from office at any time, but only for cause, and only by the affirmative vote of the holders of at least [Insert Percentage]% of the voting power of all then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. For purposes of this Section 5.4, "cause" shall mean (i) a conviction of, or plea of nolo contendere to, a felony, (ii) a finding by a court of competent jurisdiction (which finding is not subject to further appeal) that such director committed acts of fraud or dishonesty resulting in material damage to the Corporation or its subsidiaries, or (iii) a willful and continuing failure to perform the duties of a director of the Corporation after written demand for performance has been delivered to such director specifically identifying the manner in which it is alleged that such director has not performed his or her duties.
[If unclassified board — Option B:] Any director, or the entire Board of Directors, may be removed from office at any time, with or without cause, by the affirmative vote of the holders of a majority of the voting power of all then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
Section 5.5 — Vacancies and Newly Created Directorships. Subject to the rights, if any, of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal, or any other cause, and any newly created directorships resulting from any increase in the number of directors, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors, or by the sole remaining director, and shall not be filled by the stockholders. Any director elected to fill a vacancy shall hold office for the remainder of the full term of the class of directors in which the vacancy occurred (or, if the Board of Directors is not classified, until the next annual meeting of stockholders) and until such director's successor shall have been duly elected and qualified, or until such director's earlier death, resignation, disqualification, or removal. No decrease in the authorized number of directors shall shorten the term of any incumbent director.
Section 5.6 — Election of Directors; Ballot. Elections of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide.
ARTICLE VI
LIMITATION ON LIABILITY OF DIRECTORS AND OFFICERS
Section 6.1 — Director Exculpation. To the fullest extent permitted by the DGCL, as it now exists or as it may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader exculpation rights than the DGCL permitted the Corporation to provide prior to such amendment), no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director; provided, however, that nothing contained herein shall eliminate or limit the liability of a director:
(a) for any breach of the director's duty of loyalty to the Corporation or its stockholders;
(b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
(c) under Section 174 of the DGCL (relating to unlawful payment of dividends, stock purchases, or redemptions); or
(d) for any transaction from which the director derived an improper personal benefit.
Section 6.2 — Officer Exculpation. To the fullest extent permitted by the DGCL, as it now exists or as it may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader exculpation rights than the DGCL permitted the Corporation to provide prior to such amendment), no officer of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as an officer; provided, however, that nothing contained herein shall eliminate or limit the liability of an officer:
(a) for any breach of the officer's duty of loyalty to the Corporation or its stockholders;
(b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
(c) for any transaction from which the officer derived an improper personal benefit; or
(d) in any action by or in the right of the Corporation (i.e., a derivative action).
For purposes of this Section 6.2, "officer" shall have the meaning given to such term by Section 102(b)(7) of the DGCL, as it may be amended from time to time.
Section 6.3 — No Retroactive Impairment. No amendment to, repeal of, or adoption of any provision of this Certificate inconsistent with this Article VI shall apply to, or have any effect on, the liability or alleged liability of any director or officer of the Corporation for or with respect to any acts or omissions of such director or officer occurring prior to such amendment, repeal, or adoption. If the DGCL is amended after the date of this Certificate to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.
ARTICLE VII
INDEMNIFICATION.  Section 7.1 — Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by the DGCL, as it now exists or as it may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than the DGCL permitted the Corporation to provide prior to such amendment), any person (an "Indemnitee") who was or is a party to or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (a "Proceeding"), by reason of the fact that such person is or was, or has agreed to become, a director or officer of the Corporation, or while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, partner, member, manager, trustee, employee, or agent of another corporation, partnership, joint venture, limited liability company, trust, or other enterprise (including service with respect to any employee benefit plan), against all expenses (including attorneys' fees), judgments, fines (including ERISA excise taxes and penalties), and amounts paid in settlement actually and reasonably incurred by or on behalf of such Indemnitee in connection with such Proceeding and any appeal therefrom.
Notwithstanding the foregoing, except as provided in Section 7.2 and Section 7.3 of this Article VII, the Corporation shall be required to indemnify an Indemnitee in connection with a Proceeding (or part thereof) commenced by such Indemnitee only if the commencement of such Proceeding (or part thereof) by the Indemnitee was authorized by the Board of Directors of the Corporation.
Section 7.2 — Advancement of Expenses. The Corporation shall, to the fullest extent permitted by the DGCL, as it now exists or as it may hereafter be amended, pay the expenses (including attorneys' fees) incurred by an Indemnitee in defending or otherwise participating in any Proceeding in advance of its final disposition; provided, however, that, to the extent required by the DGCL, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal that such Indemnitee is not entitled to be indemnified for such expenses under this Article VII or otherwise. The Corporation may, by action of the Board of Directors, provide indemnification and advancement of expenses to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification and advancement of expenses of directors and officers.
Section 7.3 — Non-Exclusivity of Rights. The rights to indemnification and advancement of expenses conferred by this Article VII shall not be exclusive of any other rights to which any person seeking indemnification or advancement of expenses may be entitled under any statute, this Certificate, the Bylaws, any agreement, any vote of stockholders or disinterested directors, or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. The Corporation is specifically authorized to enter into individual contracts with any or all of its directors, officers, employees, or agents respecting indemnification and advancement of expenses, to the fullest extent not prohibited by the DGCL or other applicable law.
Section 7.4 — Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, member, manager, trustee, employee, or agent of another corporation, partnership, joint venture, limited liability company, trust, or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of the DGCL.
Section 7.5 — Survival. The rights to indemnification and advancement of expenses conferred by this Article VII shall continue as to an Indemnitee who has ceased to be a director, officer, employee, or agent of the Corporation and shall inure to the benefit of the heirs, executors, and administrators of such Indemnitee. Any amendment to, repeal of, or adoption of any provision of this Certificate inconsistent with this Article VII shall not adversely affect any right or protection of any Indemnitee existing at the time of such amendment, repeal, or adoption with respect to any acts or omissions occurring prior to such amendment, repeal, or adoption.
Section 7.6 — Severability. If any provision or provisions of this Article VII shall be held to be invalid, illegal, or unenforceable for any reason whatsoever: (a) the validity, legality, and enforceability of the remaining provisions of this Article VII shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VII (including, without limitation, each such portion of this Article VII containing any such provision held to be invalid, illegal, or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal, or unenforceable.
ARTICLE VIII
BYLAWS.  In furtherance and not in limitation of the powers conferred upon the Board of Directors by the DGCL, the Board of Directors is hereby expressly authorized to adopt, amend, alter, or repeal the Bylaws of the Corporation by the affirmative vote of a majority of the total number of directors then in office. Any adoption, amendment, alteration, or repeal of the Bylaws by the Board of Directors shall require the approval of a majority of the authorized number of directors.
In addition to any vote of the holders of any class or series of stock of the Corporation required by applicable law or by this Certificate (including any certificate of designation relating to any series of Preferred Stock), the Bylaws may also be adopted, amended, altered, or repealed by the affirmative vote of the holders of at least [Insert Percentage, e.g., sixty-six and two-thirds percent (66⅔%)] of the voting power of all then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. No Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board of Directors that would have been valid if such Bylaws had not been adopted.
ARTICLE IX
STOCKHOLDER MATTERS.  Section 9.1 — No Written Consent. No action that is required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting of stockholders may be effected by written consent of stockholders in lieu of a meeting of stockholders, unless such action is first recommended or approved by the Board of Directors. [Alternative: Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of the stockholders of the Corporation and may not be effected by written consent of stockholders in lieu of a meeting of stockholders.] Any action taken by stockholders of the Corporation that is inconsistent with this Section 9.1 shall be void and of no effect.
Section 9.2 — Special Meetings. Special meetings of stockholders of the Corporation may be called only by the Board of Directors, the Chairperson of the Board of Directors, or the Chief Executive Officer of the Corporation, and shall not be called by any other person. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation's notice of meeting. The Board of Directors may postpone, reschedule, or cancel any previously scheduled special meeting of stockholders at any time, before or after the notice for such meeting has been sent to the stockholders.
Section 9.3 — Supermajority Voting Provisions for Amendments to Specified Articles. Notwithstanding any other provision of this Certificate 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 any class or series of the stock of this Corporation required by law or by this Certificate (including any certificate of designation relating to any series of Preferred Stock), the affirmative vote of the holders of at least [Insert Percentage]% of the voting power of all then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend, alter, repeal, or adopt any provision inconsistent with Article V (Board of Directors), Article VI (Limitation on Liability of Directors and Officers), Article VII (Indemnification), Article VIII (Bylaws), this Article IX (Stockholder Matters), Article X (Corporate Opportunities), Article XI (Exclusive Forum), or this Section 9.3.
ARTICLE X
CORPORATE OPPORTUNITIES.  To the fullest extent permitted by Section 122(17) of the DGCL, the Corporation hereby renounces and waives any interest or expectancy of the Corporation in, and any right of the Corporation to be offered an opportunity to participate in, any business opportunity that may from time to time be presented to or become known to [Insert Designated Persons/Entities, e.g., the Sponsor, its affiliates, or any non-employee director] (each, an "Exempt Person") in a capacity other than as a director or officer of the Corporation, even if such business opportunity is one that the Corporation might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so. No Exempt Person shall have any duty to communicate or offer any such business opportunity to the Corporation, and no Exempt Person shall be liable to the Corporation or any of its stockholders for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such Exempt Person pursues or acquires any such business opportunity, directs such business opportunity to another person or entity, or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation.
Notwithstanding the foregoing, an Exempt Person who is a director or officer of the Corporation shall not be relieved of his or her obligation under this Article X with respect to a business opportunity that is expressly offered to such Exempt Person solely in his or her capacity as a director or officer of the Corporation, and the Corporation does not renounce its interest in any such opportunity.
Any person purchasing or otherwise acquiring or holding any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article X. Neither the amendment, modification, nor repeal of this Article X, nor the adoption of any provision of this Certificate inconsistent with this Article X, shall eliminate or reduce the effect of this Article X in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit, or claim that, but for this Article X, would accrue or arise, prior to such amendment, modification, repeal, or adoption.
ARTICLE XI
EXCLUSIVE FORUM.  Section 11.1 — Delaware Forum Selection (State Law Claims). Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have jurisdiction, the Superior Court of the State of Delaware, or, if the Superior Court of the State of Delaware also does not have jurisdiction, the United States District Court for the District of Delaware) shall be the sole and exclusive forum for each of the following types of actions or proceedings under Delaware statutory or common law:
(a) any derivative action or proceeding brought on behalf of the Corporation;
(b) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, employee, or agent of the Corporation to the Corporation or the Corporation's stockholders;
(c) any action asserting a claim arising pursuant to any provision of the DGCL, this Certificate (including, for the avoidance of doubt, any certificate of designation relating to any series of Preferred Stock), or the Bylaws (as any of the foregoing may be amended, restated, modified, supplemented, or waived from time to time);
(d) any action to interpret, apply, enforce, or determine the validity of this Certificate or the Bylaws;
(e) any action asserting a claim against the Corporation or any current or former director, officer, or other employee of the Corporation governed by the internal affairs doctrine; and
(f) any action asserting an "internal corporate claim" as that term is defined in Section 115 of the DGCL.
This Section 11.1 shall not apply to any action or proceeding asserting a cause of action arising under the Securities Act of 1933, as amended (the "Securities Act"), or the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Section 11.2 — Federal Forum Selection (Securities Act Claims). Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. For the avoidance of doubt, this Section 11.2 is intended to benefit and may be enforced by the Corporation, its officers, directors, and other employees or agents, and the underwriters, placement agents, and their respective affiliates in any offering giving rise to such complaint. This Section 11.2 shall not apply to claims arising under the Exchange Act, for which there is exclusive federal jurisdiction pursuant to Section 27 of the Exchange Act.
Section 11.3 — Consent to Jurisdiction; Notice. Any person or entity purchasing or otherwise acquiring or holding any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article XI. If any action the subject matter of which is within the scope of Section 11.1 or Section 11.2 above is filed in a court other than the applicable courts specified above (each, a "Foreign Action"), such person or entity shall be deemed to have consented to (a) the personal jurisdiction of the applicable courts specified in Section 11.1 and Section 11.2 above in connection with any action brought in any such court to enforce Section 11.1 or Section 11.2 above and (b) having service of process made upon such person or entity in any such enforcement action by service upon such person's or entity's counsel in the Foreign Action as agent for such person or entity.
Section 11.4 — Severability. If any provision of this Article XI, or the application of any such provision to any person or entity or any circumstance, shall be held to be invalid, illegal, or unenforceable in any respect by any court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Article XI, and such invalid, illegal, or unenforceable provision shall be modified, to the minimum extent necessary, to give effect to the original intent of the provision.
ARTICLE XII
AMENDMENT.  The Corporation reserves the right to amend, alter, change, or repeal any provision contained in this Certificate in the manner now or hereafter prescribed by the DGCL and this Certificate, and all rights and powers conferred herein on stockholders, directors, and officers are granted subject to this reserved power; provided, however, that, notwithstanding any other provision of this Certificate 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 any class or series of the stock of this Corporation required by law or by this Certificate (including any certificate of designation relating to any series of Preferred Stock), the affirmative vote of the holders of at least the percentage of outstanding voting power specified in Section 9.3 of Article IX of this Certificate shall be required to amend, alter, repeal, or adopt any provision inconsistent with those Articles of this Certificate specified in Section 9.3 of Article IX.
ARTICLE XIII
SEVERABILITY.  If any provision of this Certificate becomes or is declared on any ground by a court of competent jurisdiction to be illegal, unenforceable, or void, portions of such provision, or such provision in its entirety, to the extent necessary, shall be severed from this Certificate, and the court shall replace such illegal, void, or unenforceable provision of this Certificate with a valid and enforceable provision that most accurately reflects the Corporation's intent, as manifested herein, in adopting the provision held to be illegal, void, or unenforceable. The balance of this Certificate shall be enforceable in accordance with its terms. In the event that a court of competent jurisdiction determines that any provision of this Certificate is invalid, illegal, or unenforceable but that by limiting such provision the provision would become valid, legal, and enforceable, such provision shall be deemed to be so limited and shall be enforced to the maximum extent permitted by applicable law.
ARTICLE XIV
DOMESTICATION.  This Certificate is being filed in connection with the domestication of [Insert Prior Entity Name], a [Insert Prior Jurisdiction] [Insert Entity Type] (the "Prior Entity"), to the State of Delaware pursuant to Section 388 of the DGCL. The Prior Entity was originally formed or incorporated under the laws of [Insert Prior Jurisdiction] on [Insert Date of Original Formation]. This Certificate is being filed simultaneously with a Certificate of Corporate Domestication as required by Section 388 of the DGCL. Upon the effectiveness of this Certificate and the Certificate of Corporate Domestication, the Prior Entity shall be domesticated as a corporation organized under the laws of the State of Delaware, and all of its outstanding shares or other equity interests shall be converted or exchanged in accordance with the terms of the applicable transaction agreement, and the Corporation shall thereupon and thereafter be subject to all of the provisions of the DGCL, except that notwithstanding Section 106 of the DGCL, the existence of the Corporation shall be deemed to have commenced on the date the Prior Entity commenced its existence in its jurisdiction of formation.
[Note: If this Article XIV is not applicable because the Corporation was originally formed in Delaware, this Article may be deleted in its entirety, and subsequent Articles, if any, renumbered accordingly.]
[Remainder of Page Intentionally Left Blank] [Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Amended and Restated Certificate of Incorporation as of [Insert Date].
[INSERT FULL LEGAL NAME OF CORPORATION]
By: ________
Name: [Insert Name of Authorized Officer]
Title: [Insert Title]
Date: ________
EXHIBIT AND SCHEDULE PLACEHOLDERS
The following exhibits or schedules may be appended to this Certificate to the extent required by the applicable transaction documents or as otherwise determined by counsel:
Exhibit A — Initial Classification of Directors (if applicable under Article V, Section 5.3, Option A)
Exhibit B — Certificate of Designation of Series [__] Preferred Stock (if applicable; to be filed as a separate instrument with the Secretary of State of the State of Delaware)
Exhibit C — Certificate of Corporate Domestication (if applicable under Article XIV; to be filed as a separate instrument with the Secretary of State of the State of Delaware pursuant to Section 388 of the DGCL)
Note: Certificates of designation for series of Preferred Stock are customarily filed as separate instruments with the Secretary of State of the State of Delaware and are not attached as exhibits to the Amended and Restated Certificate of Incorporation. The placeholders above are included for reference purposes only. Confirm with counsel whether any ancillary filings need to be prepared and filed concurrently with this Certificate.
END OF FORM