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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM 8-K/A
Current Report
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
January 18, 2024
The
Simply Good Foods Company
(Exact name of registrant as specified in its
charter)
Delaware | |
001-38115 | |
82-1038121 |
(State or other jurisdiction of | |
(Commission File Number) | |
(I.R.S. Employer |
incorporation or organization) | |
| |
Identification Number) |
1225
17th Street, Suite 1000
Denver, CO
80202
(Address of principal executive offices and zip code)
Registrant’s telephone number, including
area code: (303) 633-2840
Check the appropriate box
below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following
provisions:
¨ | Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant
to Section 12(b) of the Act:
Title of each class | |
Trading symbol | |
Name of each exchange on which registered |
Common
Stock, par value $0.01 per share | |
SMPL | |
Nasdaq
|
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 13(a) of the Exchange Act. ¨
Explanatory Note
This Current Report on Form 8-K/A is being filed solely to correct
a typographical error in a date appearing in Item 5.03 and on the signature page to the Current Report on Form 8-K filed by
registrant on January 23, 2024 (the “Original Report”). Except as amended by this Amendment, all information set forth in
the Original Report and corresponding exhibit remains unchanged.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
On January 18, 2024, The Simply Good Foods Company (the “Company”)
held its 2024 Annual Meeting of Stockholders (the “Annual Meeting”) in virtual format only, via the internet, with no physical
in-person meeting. On January 23, 2024, the Company filed a Fourth Amended and Restated Certificate of Incorporation (the “Restated
Certificate”) with the Secretary of State of the State of Delaware to effect the amendments approved by the Company’s stockholders
at the Annual Meeting. A summary of the material terms of the amendments included in the Restated Certificate are set forth in the Company’s
definitive proxy statement for the Annual Meeting filed with the Securities and Exchange Commission on December 7, 2023 (the “Proxy
Statement”). The summary of the amendments included in the Restated Certificate set forth in the Proxy Statement are qualified
in their entirety by reference to the full text of the Restated Certificate, a copy of which is filed as Exhibit 3.1 to this Current
Report on Form 8-K and incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
On January 18, 2024, at the Annual Meeting, stockholders present in
person, including by means of remote communication, or represented by proxy voted on the matters described below. The final voting results
of the matters submitted to a vote of the stockholders were as follows:
Proposal
1. Election of 12 director nominees to serve until the 2025 annual meeting of stockholders and thereafter until their successors
are duly elected and qualified:
| |
For | | |
Withheld | | |
Non-votes | |
Clayton C. Daley, Jr. | |
| 93,252,381 | | |
| 883,570 | | |
| 1,175,177 | |
Nomi P. Ghez | |
| 86,073,631 | | |
| 8,062,320 | | |
| 1,175,177 | |
Michelle P. Goolsby | |
| 90,858,788 | | |
| 3,277,163 | | |
| 1,175,177 | |
James M. Kilts | |
| 88,771,940 | | |
| 5,364,011 | | |
| 1,175,177 | |
Robert G. Montgomery | |
| 93,482,095 | | |
| 653,856 | | |
| 1,175,177 | |
Brian K. Ratzan | |
| 93,483,701 | | |
| 652,250 | | |
| 1,175,177 | |
David W. Ritterbush | |
| 93,504,158 | | |
| 631,793 | | |
| 1,175,177 | |
Joseph E. Scalzo | |
| 92,662,001 | | |
| 1,473,950 | | |
| 1,175,177 | |
Joseph J. Schena | |
| 93,505,653 | | |
| 630,298 | | |
| 1,175,177 | |
Geoff E. Tanner | |
| 93,569,529 | | |
| 566,422 | | |
| 1,175,177 | |
David J. West | |
| 93,481,695 | | |
| 654,256 | | |
| 1,175,177 | |
James D. White | |
| 87,583,505 | | |
| 6,552,446 | | |
| 1,175,177 | |
Proposal
2. Ratification of the appointment of Deloitte & Touche LLP as the Company’s independent registered public accounting
firm for fiscal year 2024:
For | | |
Against | | |
Abstain | | |
Non-votes | |
| 95,287,715 | | |
| 10,567 | | |
| 12,846 | | |
| 0 | |
Proposal
3. The approval of the adoption of the Fourth Amended and Restated Certificate of Incorporation of The Simply Good Foods Company
in the form attached as Annex II to the Proxy Statement.
For | | |
Against | | |
Abstain | | |
Non-votes | |
| 83,737,113 | | |
| 10,363,208 | | |
| 35,630 | | |
| 1,175,177 | |
Proposal
4. The advisory vote to approve the compensation of the Company’s named executive officers:
For | | |
Against | | |
Abstain | | |
Non-votes | |
| 92,321,485 | | |
| 1,797,600 | | |
| 16,866 | | |
| 1,175,177 | |
Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
Date: |
January 24, 2024 |
|
By: |
/s/ Shaun P. Mara |
|
|
|
Name: |
Shaun P. Mara |
|
|
|
Title: |
Chief Financial Officer |
|
|
|
|
(Principal Financial Officer) |
Exhibit 3.1
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THE SIMPLY GOOD FOODS COMPANY
* * * * *
Geoff E. Tanner, being the
President and Chief Executive Officer of The Simply Good Foods Company, a corporation duly organized and existing under and by virtue
of the General Corporation Law of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY as follows:
FIRST: The present
name of the Corporation is The Simply Good Foods Company. The Corporation was incorporated by the filing of its original Certificate of
Incorporation with the Delaware Secretary of State on March 30, 2017, which was first amended and restated on July 7, 2017,
and again on January 27, 2020, and again on January 24, 2023 (as amended and restated, the “Certificate of Incorporation”).
SECOND: The Board of
Directors of the Corporation, at a meeting duly called and held duly adopted resolutions authorizing the Corporation to amend, integrate
and restate the Certificate of Incorporation of the Corporation in its entirety to read as set forth in Exhibit A attached
hereto and made a part hereof (the “Restated Certificate”).
THIRD: The Restated
Certificate restates and integrates and further amends the Certificate of Incorporation of this Corporation.
FOURTH: That the stockholders
of the Corporation, at a meeting duly called and held, approved and adopted the amendments contained in the Restated Certificate and the
preparation and filing of the Restated Certificate in accordance with Sections 211, 242 and 245 of the General Corporation Law of the
State of Delaware.
* * * * *
IN WITNESS WHEREOF, The Simply
Good Foods Company has caused this Fourth Amended and Restated Certification of Incorporation to be executed by its duly authorized officer
on this 23rd day of January, 2024.
THE SIMPLY GOOD FOODS COMPANY
By: |
/s/ Geoff E. Tanner |
|
Name: |
Geoff E. Tanner |
|
Title: |
President and Chief Executive Officer |
|
Exhibit A
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
THE SIMPLY GOOD FOODS COMPANY
Article One
The name of the corporation is The Simply Good Foods
Company (the “Corporation”).
Article Two
The address of the Corporation’s registered
office in the State of Delaware is 251 Little Falls Drive, Wilmington, Delaware 19808, County of New Castle. The name of its registered
agent at such address is Corporation Service Company.
Article Three
The nature and purpose of the business of the Corporation
is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware
(“DGCL”).
Article Four
Section 1. Authorized
Shares. The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 700,000,000
shares, consisting of:
| 1. | 100,000,000 shares of Preferred Stock, par value $0.01 per share (the “Preferred Stock”); and |
| 2. | 600,000,000 shares of Common Stock, par value $0.01 per share (the “Common Stock”). |
The Preferred Stock and the Common Stock shall have
the designations, rights, powers and preferences and the qualifications, restrictions and limitations thereof, if any, set forth below.
Section 2. Preferred
Stock. The Board of Directors of the Corporation (the “Board of Directors”) is authorized, subject to limitations
prescribed by law, to provide, by resolution or resolutions for the issuance of shares of Preferred Stock in one or more series, and
with respect to each series, to establish the number of shares to be included in each such series, and to fix the voting powers (if any),
designations, powers, preferences, and relative, participating, optional or other special rights, if any, of the shares of each such
series, and any qualifications, limitations or restrictions thereof. The powers, preferences, and relative, participating, optional and
other special rights of each series of Preferred Stock and the qualifications, limitations or restrictions thereof, if any, may differ
from those of any and all other series at any time outstanding. Subject to applicable law and within the limitations or restrictions
stated in any resolution or resolutions of the Board of Directors fixing the number of shares constituting a series of Preferred Stock,
the Board of Directors may increase or decrease (but not below the number of shares of any such series of Preferred Stock then outstanding
and not above the total number of authorized shares of Preferred Stock) by resolution the number of shares of any such series of Preferred
Stock. In the event that the number of shares of any series of Preferred Stock shall be so decreased, the shares constituting such decrease
shall resume the undesignated status of authorized and unissued shares of Preferred Stock subject to the requirements of applicable law.
Subject to the rights of the holders of any series of Preferred Stock, the number of authorized shares of Preferred Stock may be increased
or decreased (but not below the number of shares thereof then outstanding) by the approval of the Board of Directors and 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 generally
in an election of directors, without the separate vote of the holders of the Preferred Stock as a class, irrespective of the provisions
of Section 242(b)(2) of the DGCL.
Section 3. Common
Stock.
(a) Except
as otherwise provided by the DGCL or this second amended and restated certificate of incorporation (the “Certificate of Incorporation”)
and subject to the rights of holders of any series of Preferred Stock, all of the voting power of the stockholders of the Corporation
shall be vested in the holders of the Common Stock. Each share of Common Stock shall entitle the holder thereof to one vote for each
share held by such holder on all matters voted upon by the stockholders of the Corporation; provided, however, that, except
as otherwise required by law, holders of Common Stock, as such, shall not be entitled to vote on any amendment to this Certificate of
Incorporation (including any certificate of designation relating to any series of Preferred Stock) that relates solely to the terms of
one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together
with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any certificate
of designation relating to any series of Preferred Stock) or pursuant to the DGCL.
(b) Except
as otherwise required by law or expressly provided in this Certificate of Incorporation, each share of Common Stock shall have the same
powers, rights and privileges and shall rank equally, share ratably and be identical in all respects as to all matters.
(c) Subject
to the rights of the holders of Preferred Stock and to the other provisions of applicable law and this Certificate of Incorporation, holders
of Common Stock shall be entitled to receive equally, on a per share basis, such dividends and other distributions in cash, securities
or other property of the Corporation if, as and when declared thereon by the Board of Directors from time to time out of assets or funds
of the Corporation legally available therefor.
(d) In
the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary, after payment
or provision for payment of the Corporation’s debts and any other payments required by law and amounts payable upon shares of Preferred
Stock ranking senior to the shares of Common Stock upon such dissolution, liquidation or winding up, if any, the remaining net assets
of the Corporation shall be distributed to the holders of shares of Common Stock and the holders of shares of any other class or series
ranking equally with the shares of Common Stock upon such dissolution, liquidation or winding up, equally on a per share basis. A merger
or consolidation of the Corporation with or into any other corporation or other entity, or a sale or conveyance of all or any part of
the assets of the Corporation (which shall not in fact result in the liquidation of the Corporation and the distribution of assets to
its stockholders) shall not be deemed to be a voluntary or involuntary liquidation or dissolution or winding up of the Corporation within
the meaning of this Paragraph (d).
Article Five
The Corporation is to have perpetual existence.
Article Six
Section 1. Board
of Directors. 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 them by statute or by this Certificate of Incorporation or the Bylaws of
the Corporation (as amended and restated, the “Bylaws”), the directors are hereby empowered to exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation except for such powers, acts and things that are by the
DGCL, the Certificate of Incorporation, or the Bylaws required to be exercised or done by the stockholders.
Section 2. Number
of Directors. Subject to any rights of the holders of any class or series of Preferred Stock to elect additional directors under
specified circumstances or otherwise, the number of directors which shall constitute the Board of Directors shall be fixed from time
to time exclusively by resolution of the Board.
Section 3. Election
and Term of Office. The directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy
at the meeting of the stockholders and entitled to vote in the election of directors; provided that, whenever the holders of any
class or series of capital stock of the Corporation are entitled to elect one or more directors pursuant to the provisions of this Certificate
of Incorporation (including, but not limited to, any duly authorized certificate of designation), such directors shall be elected by a
plurality of the votes of such class or series present in person or represented by proxy at the meeting of the stockholders and entitled
to vote in the election of such directors. Subject to the rights of the holders of any series of Preferred Stock then outstanding
and notwithstanding any other provision of this Certificate of Incorporation, at each annual meeting of stockholders commencing with the
2021 annual meeting of stockholders, directors of the corporation other than those in the 2022 Class and 2023 Class (each as
defined below) shall be elected for a term of one year, expiring at the next succeeding annual meeting of stockholders. Each director
of the corporation who was elected at the 2019 annual meeting of stockholders for a three-year term expiring in 2022 (the “2022
Class”), and each director of the corporation who was elected at the 2020 annual meeting of stockholders for a three-year term expiring
in 2023 (the “2023 Class”), including any person appointed to fill any vacancy occurring with respect to any director in the
2022 Class or the 2023 Class (each of whom shall be deemed to be a member of the class of directors in which the vacancy occurred),
shall continue to hold office until the end of the term for which such director was elected or appointed, as applicable. Commencing with
the 2022 annual meeting of stockholders, all directors of the corporation other than those in the 2023 Class will be elected for
a term of one year, and (b) commencing with the 2023 annual meeting of stockholders, all directors of the corporation will be elected
for a term of one-year. In all cases, each director shall serve until such director’s successor has been duly elected and qualified
or until such director’s earlier death, resignation, or removal. Subject to the rights of the holders of any series of Preferred
Stock then outstanding and notwithstanding any other provision of this Certificate of Incorporation, except as otherwise provided by law,
each director serving in a class of directors for a term expiring at the third annual meeting of stockholders following the election of
such class may be removed only for 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, and all other directors may be removed
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. Any director may resign at any time upon written notice
to the Corporation.
Section 4. Newly-Created
Directorships and Vacancies. Subject to the rights of the holders of any series of Preferred Stock then outstanding and except as
otherwise set forth in the Nomination Agreement, newly created directorships resulting from any increase in the authorized number of
directors or any vacancies in the Board of Directors resulting from death, resignation, disqualification, removal from office or any
other cause may be filled only by resolution of a majority of the directors then in office, although less than a quorum, or by a sole
remaining director. A director elected or appointed to fill a vacancy shall serve for the unexpired term of his or her predecessor in
office and until his or her successor is elected and qualified or until his or her earlier death, resignation or removal. A director
elected or appointed to fill a position resulting from an increase in the number of directors shall hold office until the next election
of the class for which such director shall have been elected or appointed and until his or her successor is elected and qualified, or
until his or her earlier death, resignation or removal. No decrease in the authorized number of directors shall shorten the term of any
incumbent director.
Section 5. Rights
of Holders of Preferred Stock. Notwithstanding the provisions of this ARTICLE SIX, whenever the holders of one or more series
of Preferred Stock shall have the right, voting separately or together by series, to elect directors at an annual or special meeting
of stockholders, the election, term of office, filling of vacancies and other features of such directorship shall be subject to the rights
of such series of Preferred Stock.
Section 6. Advance
Notice. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before
any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.
Article Seven
Section 1. Limitation
of Liability.
(a) To
the fullest extent permitted by the DGCL as it now exists or may hereafter be amended (but, in the case of any such amendment, only to
the extent such amendment permits the Corporation to provide broader exculpation than permitted prior thereto), no director or officer
of the Corporation shall be liable to the Corporation or its stockholders for monetary damages arising from a breach of fiduciary duty
as a director or officer.
(b) Any
amendment, repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right
or protection of a director or officer of the Corporation existing at the time of such amendment, repeal or modification with respect
to any act, omission or other matter occurring prior to such amendment, repeal or modification.
Article Eight
Section 1. Action
by Written Consent. Any action required or permitted to be taken by the Corporation’s stockholders may be taken only at a duly
called annual or special meeting of the Corporation’s stockholders and the power of stockholders to consent in writing without
a meeting is specifically denied.
Section 2. Special
Meetings of Stockholders. Subject to the rights of the holders of any series of Preferred Stock then outstanding and to the requirements
of applicable law, special meetings of stockholders of the Corporation may be called only by or at the direction of the Board of Directors
or the Chairman of the Board of Directors. Any business transacted at any special meeting of stockholders shall be limited to the purpose
or purposes stated in the notice of the meeting.
Article Nine
Section 1. Certain
Acknowledgments.
(a) To
the extent allowed by law, the doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to the
Corporation or any of its officers or directors, and the Corporation renounces any expectancy that any of the directors or officers of
the Corporation will offer any such corporate opportunity of which he or she may become aware to the Corporation, except, the doctrine
of corporate opportunity shall apply with respect to any of the directors or officers of the Corporation only with respect to a corporate
opportunity that was offered in writing to such person solely in his or her capacity as a director or officer of the Corporation and
such opportunity is one the Corporation is legally and contractually permitted to undertake and would otherwise be reasonable for the
Corporation to pursue. In recognition and anticipation that (i) the directors, officers, employees or representatives of Atkins
Holdings LLC (“Atkins Holdings”), Conyers Park Sponsor LLC (“Conyers Park Sponsor”) Centerview
Capital Holdings LLC (“Centerview Capital”), and Centerview Partners (and together with Centerview Capital, Conyers
Park Sponsor and Atkins Holdings, each a “Sponsor Entity”) and their respective Affiliates may serve as directors
and/or officers of the Corporation, (ii) the Sponsor Entities and their respective Affiliates engage and may continue to engage
in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage
and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage,
and (iii) that the Corporation may engage in material business transactions with the Sponsor Entities or their respective Affiliates
and that the Corporation is expected to benefit therefrom, the provisions of this ARTICLE NINE are set forth to regulate and define
the conduct of certain affairs of the Corporation as they may involve the Sponsor Entities or their respective Affiliates, and the powers,
rights, duties and liabilities of the Corporation and its officers, directors and stockholders in connection therewith.
(b) No
Sponsor Entity nor any of their respective Affiliates shall have any duty to refrain from engaging directly or indirectly in the same
or similar business activities or lines of business as the Corporation and no Sponsor Entity nor any officer, director or representative
thereof (except as provided in the first sentence of paragraph (a) above) shall be liable to the Corporation or its stockholders
for breach of any fiduciary duty solely by reason of any such activities of such Sponsor Entity or any of their respective Affiliates.
In the event that a Sponsor Entity or any of their respective Affiliates acquires knowledge of a potential transaction or matter which
may be a corporate opportunity for itself and the Corporation, no Sponsor Entity nor any of their respective Affiliates shall have any
duty to communicate or offer such corporate opportunity to the Corporation and shall not be liable to the Corporation or its stockholders
for breach of any fiduciary duty as a stockholder of the Corporation solely by reason of the fact that a Sponsor Entity or any of their
respective Affiliates pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another person,
or does not communicate information regarding such corporate opportunity to the Corporation.
(c) In
addition to and notwithstanding the foregoing provisions of this ARTICLE NINE, a corporate opportunity shall not be deemed to belong
to the Corporation if it is a business opportunity that the Corporation is not financially able or contractually permitted or legally
able to undertake, or that is, from its nature, not in the line of the Corporation’s business or is of no practical advantage to
it or that is one in which the Corporation has no interest or reasonable expectancy.
(d) Except
as provided in the first sentence of paragraph (a) above, if a director or officer of the Corporation who is also a director, officer,
employee or representative of a Sponsor Entity or any of their respective Affiliates acquires knowledge of a potential transaction or
matter which may be a corporate opportunity, the Corporation shall have no interest in such corporate opportunity and no expectancy that
such corporate opportunity be offered to it, any such interest or expectancy being hereby renounced, so that such person shall have no
duty to present such corporate opportunity to the Corporation and shall have the right to hold and exploit any such corporate opportunity
for its (and its officers’, employees’, directors’, agents’, stockholders’, members’, partners’,
affiliates’ or subsidiaries’) own account or to direct, sell, assign or transfer such corporate opportunity to persons other
than the Corporation. Such person shall not breach any fiduciary duty to the Corporation or to its stockholders by reason of the fact
that such person does not present such corporate opportunity to the Corporation or pursues, acquires or exploits such corporate opportunity
for itself or directs, sells, assigns or transfers such corporate opportunity to another person.
Section 2. Deemed
Notice. Any person or entity purchasing or otherwise acquiring or holding any interest in any shares of the Corporation shall be
deemed to have notice of and to have consented to the provisions of this ARTICLE NINE.
Section 3. Severability.
To the extent that any provision or part of any provision of this ARTICLE NINE is found to be invalid or unenforceable, such invalidity
or unenforceability shall not affect the validity or enforceability of any other provision or part of any other provision of this ARTICLE NINE.
Article Ten
Section 1. Section 203
of the DGCL. The Corporation expressly elects not to be subject to the provisions of Section 203 of the DGCL.
Section 2. Business
Combinations with Interested Stockholders. Notwithstanding the foregoing, the Corporation shall not engage in any business combination
(as defined below), at any point in time at which the Corporation’s Common Stock is registered under Section 12(b) or
12(g) of the Exchange Act of 1934, as amended (the “Exchange Act”) with any interested stockholder (as defined below)
for a period of three (3) years following the time that such stockholder became an interested stockholder, unless:
(a) prior
to such time, the Board approved either the business combination or the transaction which resulted in the stockholder becoming an interested
stockholder, or
(b) upon
consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned
at least eighty-five percent (85%) of the voting stock outstanding at the time the transaction commenced, excluding for purposes of determining
the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (i) persons
who are directors and also officers of the Corporation and (ii) employee stock plans in which employee participants do not have the
right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or
(c) at
or subsequent to that time, the business combination is approved by the Board and authorized at an annual or special meeting of stockholders,
and not by written consent, by the affirmative vote of at least 66-2/3% of the outstanding voting stock that is not owned by the interested
stockholder.
Certain Definitions. Solely for purposes of this
ARTICLE TEN, references to:
(a) “affiliate”
means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control
with, another person.
(b) “associate,”
when used to indicate a relationship with any person, means: (i) any corporation, partnership, unincorporated association or other
entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of twenty percent (20%) or more
of any class of voting stock; (ii) any trust or other estate in which such person has at least a twenty percent (20%) beneficial
interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such
person, or any relative of such spouse, who has the same residence as such person.
(c) “business
combination,” when used in reference to the Corporation and any interested stockholder of the Corporation, means:
(i). any
merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation (a) with the interested
stockholder, or (b) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation
is caused by the interested stockholder and as a result of such merger or consolidation this Section 2 is not applicable to the surviving
entity;
(ii). any
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately
as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of
the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value
equal to ten percent (10%) or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated
basis or the aggregate market value of all the outstanding stock of the Corporation;
(iii). any
transaction which results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the
Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (a) pursuant to the exercise,
exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary
which securities were outstanding prior to the time that the interested stockholder became such; (b) pursuant to a merger under Section 251(g) of
the DGCL; (c) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable
for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which security is distributed, pro rata to all
stockholders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (d) pursuant
to an exchange offer by the Corporation to purchase stock made on the same terms to all stockholders of said stock; or (e) any issuance
or transfer of stock by the Corporation; provided, however, that in no case under items (c)-(e) of this subsection (iii) shall
there be an increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation
or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional share adjustments); or
(iv). any
transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect, directly
or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of
any class or series, of the Corporation or of any such subsidiary which is owned by the interested stockholder, except as a result of
immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused,
directly or indirectly, by the interested stockholder.
(d) “control,”
including the terms “controlling,” “controlled by” and “under common control with,” means the possession,
directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the
ownership of voting stock, by contract, or otherwise. A person who is the owner of twenty percent (20%) or more of the voting power of
the outstanding voting stock of the Corporation, partnership, unincorporated association or other entity shall be presumed to have control
of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption
of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this ARTICLE TEN,
as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of
such entity.
(e) “Exempted
Person” means Centerview Capital Holdings LLC, Conyers Park Sponsor LLC and their respective affiliates, any of their respective
direct or indirect transferees of at least 15% of the Corporation’s outstanding common stock and any “group” of which
any such person is a part under Rule 13d-5 of the Exchange Act, as in effect at the Effective Time.
(f) “interested
stockholder” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation)
that (i) is the owner of fifteen percent (15%) or more of the voting stock of the Corporation, or (ii) is an affiliate or associate
of the Corporation and was the owner of fifteen percent (15%) or more of the voting stock of the Corporation at any time within the three
(3) year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder;
and the affiliates and associates of such person; but “interested stockholder” shall not include (a) any Exempted Person,
or (b) any person whose ownership of shares in excess of the fifteen percent (15%) limitation set forth herein is the result of any
action taken solely by the Corporation; provided that with respect to clause (b) such person shall be an interested stockholder if
thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not
caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting
stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through application of the definition
of “owner” below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
(g) “owner,”
including the terms “own” and “owned,” when used with respect to any stock, means a person that individually or
with or through any of its affiliates or associates:
| 1. | beneficially owns such stock, directly or indirectly; |
| 2. | has (a) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise;
provided, however, that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person
or any of such person’s affiliates or associates until such tendered stock is accepted for purchase or exchange; or (b) the
right to vote such stock pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed
the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote
such stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to ten (10) or
more persons; or |
| 3. | has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable
proxy or consent as described in item (b) of subsection (2) above), or disposing of such stock with any other person that beneficially
owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock. |
(h) “person”
means any individual, corporation, partnership, unincorporated association or other entity.
(i) “stock”
means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.
(j) “voting
stock” means stock of any class or series entitled to vote generally in the election of directors.
Article Eleven
Section 1. Amendments
to the Bylaws. Subject to the rights of holders of any series of Preferred Stock then outstanding, in furtherance and not in limitation
of the powers conferred by law, the Bylaws may be amended, altered or repealed and new bylaws made by (i) the Board or (ii) in
addition to any other vote otherwise required by law, the affirmative vote of the holders of at least fifty percent (50%) of the voting
power of the then outstanding Voting Stock, voting together as a single class.
Section 2. Amendments
to this Certificate of Incorporation. Subject to the rights of holders of any series of Preferred Stock then outstanding, notwithstanding
any other provision of this Certificate of Incorporation or the Bylaws, and notwithstanding the fact that a lesser percentage or separate
class vote may be specified by law or otherwise, but in addition to any affirmative vote of the holders of any particular class or series
of the capital stock required by law or otherwise, this Certificate of Incorporation may not be altered, amended or repealed in any respect,
nor may any provision of this Certificate of Incorporation or the Bylaws inconsistent therewith be adopted, unless in addition to any
other vote required by this Certificate of Incorporation or otherwise required by law, such alteration, amendment, repeal or adoption
is approved by the affirmative vote of holders of at least fifty percent (50%) of the voting power of all outstanding shares of Voting
Stock, voting together as a single class, at a meeting of the Corporation’s stockholders called for that purpose.
Article Twelve
Section 1. Exclusive
Forum. (A) Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the
State of Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative
action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed
by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any
action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the DGCL
or this Certificate or the Bylaws, or (iv) any action asserting a claim against the Corporation, its directors, officers or employees
governed by the internal affairs doctrine, except for, as to each of (i) through (iv) above, any claim as to which the Court
of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable
party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is
vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not
have subject matter jurisdiction. (B) Unless the Corporation consents in writing to the selection of an alternative forum, the federal
district courts of the United States of America shall be the sole and exclusive forum for the resolution of any complaint asserting a
cause of action arising under the Securities Act of 1933, as amended, against the Corporation or any director or officer or other employee
of the Corporation.
Section 2. Consent
to Jurisdiction. If any action the subject matter of which is within the scope of Section 1(A) immediately above is filed
in a court other than a court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder,
such stockholder shall be deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within
the State of Delaware in connection with any action brought in any such court to enforce Section 1(A) immediately above (an
“FSC Enforcement Action”) and (ii) having service of process made upon such stockholder in any such FSC Enforcement
Action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
Section 3. Severability.
If any provision or provisions of this Article XII shall be held to be invalid, illegal or unenforceable as applied to any person
or entity 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 Article XII (including, without limitation,
each portion of any sentence of this Article XII 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 or entities and circumstances
shall not in any way be affected or impaired thereby. Any person or entity purchasing or otherwise acquiring any interest in shares of
capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XII.
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