JBI 8-K
Janus International Group, Inc. (JBI)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Securities registered pursuant to Section 12(b) of the Act:
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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. ¨
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
At the Annual Meeting (as defined below), the shareholders of Janus International Group, Inc. (the “Company”) approved the adoption of a Third Amended and Restated Certificate of Incorporation to (i) declassify the Board of Directors (the “Board”), (ii) eliminate supermajority vote requirements for shareholders to amend certain provisions of the Company’s certificate of incorporation and bylaws and to remove directors, and (iii) to eliminate the supermajority vote requirement relating to certain business opportunities. On June 17, 2025, the Third Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware.
The foregoing description of the Third Amended and Restated Certificate of Incorporation does not purport to be complete and is qualified in its entirety by reference to the full text of the Third Amended and Restated Certificate of Incorporation, a copy of which is filed as Exhibit 3.1 to this Current Report on Form 8-K and incorporated herein by reference. Additionally, a copy of the Third Amended and Restated Certificate of Incorporation that is marked to show changes to the Second Amended and Restated Certificate of Incorporation (additions are underlined and deletions are struck through) is also attached hereto as Exhibit 3.2 and incorporated herein by reference.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
On June 16, 2025, the Company held its annual meeting of shareholders (the “Annual Meeting”) virtually via live webcast. Only shareholders of record at the close of business on April 23, 2025, the record date for the Annual Meeting, were entitled to vote at the Annual Meeting. As of the record date, 139,961,636 shares of the Company’s common stock were outstanding and entitled to vote at the Annual Meeting. Present at the meeting in person or by proxy were holders of 135,155,343 shares of the Company’s common stock, which represented approximately 96.56% of the voting power of all shares of common stock as of the record date and constituted a quorum for the transaction of business at the Annual Meeting.
The shareholders of the Company voted on the following proposals at the Annual Meeting:
| 1. | To elect three nominees (Ramey Jackson, Xavier Gutierrez, and Heather Harding) to serve as Class I directors until the 2028 annual meeting of shareholders and until their successors are duly elected and qualified; | |
| 2. | To ratify the appointment of KPMG LLP as the Company’s independent registered public accounting firm for the year ending January 3, 2026; | |
| 3. | To approve, on a non-binding, advisory basis, the compensation of the Company’s named executive officers, as disclosed in the proxy statement for the Annual Meeting; | |
| 4. | To approve an amendment and restatement of the Company’s certificate of incorporation to declassify the Board; and | |
| 5. | To approve: (a) an amendment and restatement of the Company’s certificate of incorporation to eliminate supermajority vote requirements for shareholders to amend certain provisions of the Company’s certificate of incorporation and bylaws and to remove directors, and (b) an amendment and restatement of the Company’s certificate of incorporation to eliminate the supermajority vote requirement relating to certain business opportunities. |
The voting results for each proposal were as follows:
Proposal 1 - Election of Class I Directors:
| For | Withhold | Broker Non-Votes | ||||
| Ramey Jackson | 124,804,842 | 2,329,695 | 8,020,806 | |||
| Xavier Gutierrez | 123,860,939 | 3,273,598 | 8,020,806 | |||
| Heather Harding | 125,530,085 | 1,604,452 | 8,020,806 |
Based on the votes set forth above, each director nominee was duly elected to serve as a Class I director until the 2028 annual meeting of shareholders and until each of their respective successors is duly elected and qualified.
Following the Annual Meeting, in addition to the Class I directors, Tony Byerly, David Doll, Roger Fradin, Joseph F. Hanna, Thomas A. Szlosek, and Eileen M. Youds will also continue in their terms as directors.
Proposal 2 - Ratification of KPMG LLP as the Independent Registered Public Accounting Firm:
| For | Against | Abstain | Broker Non-Votes | |||
| 133,658,659 | 1,478,531 | 18,153 | – |
Based on the votes set forth above, the shareholders ratified the selection of KPMG LLP as the Company’s independent registered public accounting firm for the fiscal year ending January 3, 2026.
Proposal 3 - Compensation of Named Executive Officers:
| For | Against | Abstain | Broker Non-Votes | |||
| 90,708,077 | 36,405,174 | 21,286 | 8,020,806 |
Based on the votes set forth above, the shareholders approved, on a non-binding, advisory basis, the compensation of the Company’s named executive officers, as disclosed in the proxy statement for the Annual Meeting.
Proposal 4 – To Amend and Restated the Company’s Certificate of Incorporation to Declassify the Board
| For | Against | Abstain | Broker Non-Votes | |||
| 127,103,976 | 5,876 | 24,685 | 8,020,806 |
Based on the votes set forth above, the shareholders approved an amendment and restatement of the Company’s certificate of incorporation to declassify the Board. As a result, our classified board structure will be phased out beginning at next year’s annual meeting of shareholders (the “2026 Annual Meeting”), when each Class II director will stand for election for a two-year term. At the 2027 annual meeting of shareholders (the “2027 Annual Meeting”), each of the Class III directors will stand for election for a one-year term. Finally, at the 2028 annual meeting of shareholders (the “2028 Annual Meeting”) and at all annual meetings of shareholders thereafter, all directors will stand for election for a one-year term and until such director’s successor is duly elected and qualified or until such director’s earlier death, resignation or removal from office.
Proposal 5(a) – To Amend and Restate the Company’s Certificate of Incorporation to Eliminate Supermajority Vote Requirements for Shareholders to Amend Certain Provisions of the Company’s Certificate of Incorporation and Bylaws and to Remove Directors:
| For | Against | Abstain | Broker Non-Votes | |||
| 127,000,386 | 116,762 | 17,389 | 8,020,806 |
Based on the votes set forth above, the shareholders approved an amendment and restatement of the Company’s certificate of incorporation to eliminate supermajority vote requirements for shareholders to amend certain provisions of the Company’s certificate of incorporation and bylaws and to remove directors.
Proposal 5(b) – To Amend and Restate the Company’s Certificate of Incorporation to Eliminate the Supermajority Vote Requirement Relating to Certain Business Opportunities:
| For | Against | Abstain | Broker Non-Votes | |||
| 127,001,554 | 115,582 | 17,401 | 8,020,806 |
Based on the votes set forth above, the shareholders approved an amendment and restatement of the Company’s certificate of incorporation to eliminate the supermajority vote requirement relating to certain business opportunities.
| Item 9.01. | Financial Statement and Exhibits. |
| Exhibit Number |
Description | |
| 3.1 | Third Amended and Restated Certificate of Incorporation of Janus International Group, Inc. | |
| 3.2 | Third Amended and Restated Certificate of Incorporation of Janus International Group, Inc. (marked to show changes). | |
| 104 | Cover Page Interactive Data File (formatted as inline XBRL). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: June 17, 2025
| JANUS INTERNATIONAL GROUP, INC. | ||
| By: | /s/ Elliot Kahler | |
| Name: | Elliot Kahler | |
| Title: | General Counsel and Corporate Secretary | |
Exhibit 3.1
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
JANUS INTERNATIONAL GROUP, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
Janus International Group, Inc., 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 Janus International Group, Inc. The Corporation was incorporated under the name Janus Parent, Inc. by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on December 18, 2020. The Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on June 7, 2021, changing the name of the Corporation to Janus International Group, Inc. The Second Amended and Restated Certificate of Incorporation of the Corporation was adopted on June 24, 2024 (the “Second Amended and Restated Certificate”).
SECOND: The Board of Directors of the Corporation adopted resolutions authorizing the Corporation to amend, integrate and restate the Second Amended and Restated Certificate in its entirety to read as set forth in Exhibit A attached hereto and made a part hereof (this “Third Amended and Restated Certificate”).
THIRD: This Third Amended and Restated Certificate restates and integrates and further amends the Second Amended and Restated Certificate.
FOURTH: The Third Amended and Restated Certificate was duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the State of Delaware, and was approved by the stockholders of the Corporation in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
*****
IN WITNESS WHEREOF, Janus International Group, Inc. has caused this Third Amended and Restated Certificate to be duly executed and acknowledged in its name and on its behalf by its duly authorized officer on this 17th day of June, 2025.
| JANUS INTERNATIONAL GROUP, INC. | ||
| By: | /s/ Elliot Kahler | |
| Name: | Elliot Kahler | |
| Title: | Secretary | |
Exhibit A
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
JANUS INTERNATIONAL GROUP, INC.
Article I
Section 1.1 Name. The name of the Corporation is Janus International Group, Inc. (the “Corporation”).
Article II
Section 2.1 Address. The registered office of the Corporation in the State of Delaware is 251 Little Falls Drive, Wilmington, County of New Castle, Delaware 19808; and the name of the Corporation’s registered agent at such address is Corporation Service Company.
Article III
Section 3.1 Purpose. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
Article IV
Section 4.1 Capitalization. The total number of shares of all classes of stock that the Corporation is authorized to issue is 826,000,000 shares, consisting of (i) 1,000,000 shares of Preferred Stock, par value $0.0001 per share (“Preferred Stock”) and (ii) 825,000,000 shares of Common Stock, par value $0.0001 per share (“Common Stock”). The number of authorized shares of any of the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares of such class or series then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Common Stock or Preferred Stock voting separately as a class shall be required therefor, unless a vote of any such holder is required pursuant to this Third Amended and Restated Certificate of Incorporation or any certificate of designations relating to any series of Preferred Stock.
Section 4.2 Preferred Stock.
(A) The Board of Directors of the Corporation (the “Board”) is hereby expressly authorized, subject to any limitations prescribed by the DGCL, by resolution or resolutions, at any time and from time to time, 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 and the designation of such series, the voting powers (if any) of the shares of such series, and the powers, preferences and relative, participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, of the shares of such series and to cause to be filed with the Secretary of State of the State of Delaware a certificate of designations with respect thereto. 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.
(B) Except as otherwise required by applicable law, holders of a series of Preferred Stock, as such, shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by this Third Amended and Restated Certificate of Incorporation (including any certificate of designations relating to such series).
Section 4.3 Common Stock.
(A) Voting Rights.
(1) Except as otherwise provided in this Third Amended and Restated Certificate of Incorporation or as required by applicable law, each holder of Common Stock, as such, shall be entitled to one vote for each share of Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote; provided, however, that to the fullest extent permitted by applicable law, holders of Common Stock, as such, shall have no voting power with respect to, and shall not be entitled to vote on, any amendment to this Third Amended and Restated Certificate of Incorporation (including any certificate of designations 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 Third Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) or pursuant to the DGCL.
(2) Except as otherwise provided in this Third Amended and Restated Certificate of Incorporation or required by applicable law, at any annual or special meeting of the stockholders of the Corporation, holders of the Common Stock shall vote together as a single class (or, if the holders of one or more series of Preferred Stock are entitled to vote together with holders of the Common Stock, as a single class with the holders of such other series of Preferred Stock) on all matters submitted to a vote of the stockholders having voting rights generally, and shall have the exclusive right to vote for the election of directors and all other matters properly submitted to a vote of the stockholders.
(B) Dividends and Distributions. Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock having a preference over or the right to participate with the Common Stock with respect to the payment of dividends and other distributions in cash, stock of any corporation or property of the Corporation, the holders of Common Stock shall be entitled to receive ratably, in proportion to the number of shares held by each such stockholder, such dividends and other distributions as may from time to time be declared by the Board in its discretion out of the assets of the Corporation that are by law available therefor at such times and in such amounts as the Board in its discretion shall determine.
(C) Liquidation, Dissolution or Winding Up. 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 of the preferential and other amounts, if any, to which the holders of Preferred Stock having a preference over the Common Stock as to distributions upon dissolution or liquidation or winding up shall be entitled, the holders of all outstanding shares of Common Stock shall be entitled to receive the remaining assets of the Corporation available for distribution ratably in proportion to the number of shares held by each such stockholder.
Article V
Section 5.1 By-Laws. In furtherance and not in limitation of the powers conferred by the DGCL, the Board is expressly authorized to make, amend, alter, change, add to or repeal the by-laws of the Corporation (as the same may be amended from time to time, the “By-Laws”) without the assent or vote of the stockholders in any manner not inconsistent with the laws of the State of Delaware or this Third Amended and Restated Certificate of Incorporation. The affirmative vote of the holders of at least a majority of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required in order for the stockholders of the Corporation to alter, amend, repeal or rescind, in whole or in part, any such provision of the By-Laws.
Article VI
Section 6.1 Board of Directors.
(A) Except as otherwise provided in this Third Amended and Restated Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under the direction of the Board. The total number of directors constituting the whole Board shall be determined from time to time by resolution adopted by the Board. Prior to the 2028 annual meeting of stockholders, the directors (other than those directors elected by the holders of any series of Preferred Stock, voting separately as a series or together with one or more other such series, as the case may be) shall be divided into three classes designated Class I, Class II and Class III, with each class consisting, as nearly as possible, of one-third of the total number of such directors. At the 2025 annual meeting of stockholders, the successors of the Class I directors whose terms expired at that meeting were elected for a term expiring at the 2028 annual meeting of stockholders; at the 2026 annual meeting of stockholders, the successors of the Class II directors whose terms expire at that meeting shall be elected for a term expiring at the 2028 annual meeting of stockholders; and at the 2027 annual meeting of stockholders, the successors of the Class III directors whose terms expire at that meeting shall be elected for a term expiring at the 2028 annual meeting of stockholders. Commencing with the 2028 annual meeting of stockholders, the Board will no longer be classified and all directors shall be elected at that meeting and at all subsequent annual meetings of stockholders for a term expiring at the next succeeding annual meeting of stockholders. Until the 2028 annual meeting of stockholders, if the number of directors is changed, any increase or decrease shall be apportioned by the Board among the three classes so as to maintain the number of directors in each class as nearly equal as possible, but in no case shall a decrease in the number of directors remove or shorten the term of any incumbent director.
(B) Subject to the rights granted to the holders of any one or more series of Preferred Stock then outstanding, any newly-created directorship on the Board that results from an increase in the number of directors and any vacancy occurring in the Board (whether by death, resignation, or removal) shall be filled only by the affirmative vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director (and shall not be filled by the stockholders). Any director elected to fill a vacancy or newly created directorship shall hold office (i) in the event of a vacancy or newly created directorship occurring prior to the 2028 annual meeting of stockholders, for a term that shall coincide with the remaining term of that class in which the vacancy occurred or new directorship was created and (ii) in the event of a vacancy or newly created directorship occurring at or after the 2028 annual meeting of stockholders, until the following annual meeting of stockholders, or until the director’s earlier death, resignation, or removal.
(C) Any director may resign at any time upon notice to the Corporation given in writing or by any electronic transmission permitted by the By-Laws. Any or all of the directors (other than the directors elected by the holders of any series of Preferred Stock of the Corporation, voting separately as a series or together with one or more other such series, as the case may be) may be removed:
(1) at any time prior to the 2028 annual meeting of stockholders, only for cause, by the affirmative vote of the holders of at least a majority of the total voting power of the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, and
(2) at any time from and after the 2028 annual meeting of stockholders, with or without cause, by the affirmative vote of the holders of at least a majority of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
(D) Whenever the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series or separately as a class with one or more such other series, to elect directors at an annual or special meeting of stockholders, the election, term of office, removal and other features of such directorships shall be governed by the terms of this Third Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) applicable thereto. Notwithstanding Section 6.1(A), the number of directors that may be elected by the holders of any such series of Preferred Stock shall be in addition to the number fixed pursuant to Section 6.1(A) hereof, and the total number of directors constituting the whole Board shall be automatically adjusted accordingly.
(E) Directors of the Corporation need not be elected by written ballot unless the By-Laws shall so provide.
Article VII
Section 7.1 Meetings of Stockholders. Any action required or permitted to be taken by the holders of stock of the Corporation must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing or by electronic transmission by such holders unless such action is recommended or approved by all directors of the Corporation then in office; provided, however, that any action required or permitted to be taken by the holders of series of Preferred Stock (to the extent expressly permitted by the certificate of designations relating to one or more series of Preferred Stock), voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing or by electronic transmission, setting forth the action so taken, shall be signed by the holders of outstanding shares of the relevant class or series having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded, or an information processing system, if any, designated by the Corporation for receiving such consents. Subject to the rights of the holders of any series of Preferred Stock, special meetings of the stockholders of the Corporation may be called only by or at the direction of the Board, the Chairman of the Board or the Chief Executive Officer of the Corporation or as otherwise provided in the By-Laws.
Article VIII
Section 8.1 Limited Liability of Directors. To the fullest extent permitted by applicable law, no director of the Corporation will have any personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Neither the amendment nor the repeal of this Article VIII shall eliminate, reduce or otherwise adversely affect any limitation on the personal liability of a director of the Corporation existing prior to such amendment or repeal.
Section 8.2 Director and Officer Indemnification and Advancement of Expenses. The Corporation, to the fullest extent permitted by law, shall indemnify and advance expenses to any Person (as defined below) made or threatened to be made a party to any action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the Corporation or any predecessor of the Corporation, or, while serving as a director or officer of the Corporation, serves or served at any other enterprise as a director or officer at the request of the Corporation or any predecessor to the Corporation.
Section 8.3 Employee and Agent Indemnification and Advancement of Expenses. The Corporation, to the fullest extent permitted by law, may indemnify and advance expenses to any Person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she is or was an employee or agent of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as an employee or agent at the request of the Corporation or any predecessor to the Corporation.
Article IX
Section 9.1 Competition and Corporate Opportunities.
(A) In recognition and anticipation that members of the Board who are not employees of the Corporation (“Non-Employee Directors”) and their respective Affiliates and Affiliated Entities (each, as defined below) may now 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, the provisions of this Article IX are set forth to regulate and define the conduct of certain affairs of the Corporation with respect to certain classes or categories of business opportunities as they may involve any of the Non-Employee Directors or their respective Affiliates and Affiliated Entities and the powers, rights, duties and liabilities of the Corporation and its directors, officers and stockholders in connection therewith.
(B) No Non-Employee Director or his or her Affiliates or Affiliated Entities (the Persons (as defined below) above being referred to, collectively, as “Identified Persons” and, individually, as an “Identified Person”) shall, to the fullest extent permitted by applicable law, have any duty to refrain from directly or indirectly (1) engaging in the same or similar business activities or lines of business in which the Corporation or any of its Affiliates, has historically engaged, now engages or proposes to engage at any time or (2) otherwise competing with the Corporation or any of its Affiliates, and, to the fullest extent permitted by applicable law, no Identified Person shall be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities. To the fullest extent permitted by applicable law, the Corporation hereby renounces any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity which may be a corporate opportunity for an Identified Person and the Corporation or any of its Affiliates, except as provided in Section 9.1(C). Subject to Section 9.1(C), in the event that any Identified Person acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity for itself, herself or himself and the Corporation or any of its Affiliates, such Identified Person shall, to the fullest extent permitted by applicable law, have no duty to communicate or offer such transaction or other business opportunity to the Corporation or any of its Affiliates and, to the fullest extent permitted by applicable law, shall not be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty as a stockholder, director or officer of the Corporation solely by reason of the fact that such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, or offers or directs such corporate opportunity to another Person.
(C) Subject to Section 9.1(D), the Corporation does not renounce its interest in any corporate opportunity offered to any Non-Employee Director if such opportunity is expressly offered or presented to such person solely in his or her capacity as a director or officer of the Corporation, and the provisions of Section 9.1(B) shall not apply to any such corporate opportunity.
(D) In addition to and notwithstanding the foregoing provisions of this Article IX, a corporate opportunity shall not be deemed to be a potential corporate opportunity for the Corporation if it is a business opportunity that (i) the Corporation is neither financially or legally able, nor contractually permitted to undertake, (ii) from its nature, is not in the line of the Corporation’s business or is of no practical advantage to the Corporation, (iii) is one in which the Corporation has no interest or reasonable expectancy, or (iv) is one presented to any Person for the benefit of a member of the Board or such member’s Affiliate over which such member of the Board has no direct or indirect influence or control, including, but not limited to, a blind trust.
(E) For purposes of this Article IX, (i) “Affiliate” shall mean (a) in respect of a member of the Board, any Person that, directly or indirectly, is controlled by such member of the Board (other than the Corporation and any entity that is controlled by the Corporation) and (b) in respect of the Corporation, any Person that, directly or indirectly, is controlled by the Corporation; (ii) “Affiliated Entity” shall mean (x) any Person of which a Non-Employee Director serves as an officer, director, employee, agent or other representative (other than the Corporation and any entity that is controlled by the Corporation), (y) any direct or indirect partner, stockholder, member, manager or other representative of such Person or (z) any person controlling, controlled by or under common control with any of the foregoing, including any investment fund or vehicle under common management; and (iii) “Person” shall mean any individual, corporation, general or limited partnership, limited liability company, joint venture, trust, association or any other entity.
(F) To the fullest extent permitted by applicable law, any Person purchasing or otherwise acquiring 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 IX.
(G) Neither the alteration, amendment, addition to or repeal of this Article IX, nor the adoption of any provision of this Third Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) inconsistent with this Article IX, shall eliminate or reduce the effect of this Article IX 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 IX, would accrue or arise, prior to such alteration, amendment, addition, repeal or adoption. This Article IX shall not limit any protections or defenses available to, or indemnification or advancement rights of, any director or officer of the Corporation under this Third Amended and Restated Certificate of Incorporation, the By-Laws, that certain Investor Rights Agreement, dated June 7, 2021, by and among the Corporation and the stockholders of the Corporation party thereto, any indemnification agreement between such Person and the Corporation or any of its subsidiaries, or applicable law.
Article X
Section 10.1 Severability. If any provision of this Third Amended and Restated Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, the validity, legality and enforceability of such provision in any other circumstance and of the remaining provisions of this Third Amended and Restated Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Third Amended and Restated Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby.
Article XI
Section 11.1 Forum. Unless the Corporation consents in writing to the selection of an alternative forum, (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 current or former director, officer, other employee, agent or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, or any claim for aiding and abetting such alleged breach, (iii) any action asserting a claim against the Corporation or any current or former director, officer, other employee, agent or stockholder of the Corporation (a) arising pursuant to any provision of the DGCL, this Third Amended and Restated Certificate of Incorporation (as it may be amended or restated) or the By-Laws or (b) as to which the DGCL confers jurisdiction on the Delaware Court of Chancery or (iv) any action asserting a claim against the Corporation or any current or former director, officer, other employee, agent or stockholder of the Corporation governed by the internal affairs doctrine of the law of the State of Delaware shall, as to any action in the foregoing clauses (i) through (iv), to the fullest extent permitted by applicable law, be solely and exclusively brought in the Court of Chancery of the State of Delaware (the “Delaware Court of Chancery”); provided, however, that the foregoing shall not apply to any claim (a) as to which the Delaware Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Delaware Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Delaware Court of Chancery within ten days following such determination), (b) which is vested in the exclusive jurisdiction of a court or forum other than the Delaware Court of Chancery, or (c) arising under federal securities laws, including the Securities Act of 1933, as amended, as to which the federal district courts of the United States of America shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum. Notwithstanding the foregoing, the provisions of this Article XI will not apply to suits brought to enforce any liability or duty created by the Exchange Act, or any other claim for which the federal district courts of the United States of America shall be the sole and exclusive forum. If any action the subject matter of which is within the scope of the forum provisions 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: (x) 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 the forum provisions (an “enforcement action”); and (y) having service of process made upon such stockholder in any such enforcement action by service upon such stockholder’s counsel in the foreign action as agent for such stockholder. Failure to enforce the foregoing provisions would cause the Corporation irreparable harm and the Corporation shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions. To the fullest extent permitted by applicable law, any person or entity purchasing or otherwise acquiring or holding 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 XI.
Article XII
Section 12.1 Amendments. Notwithstanding anything contained in this Third Amended and Restated Certificate of Incorporation to the contrary, in addition to any vote required by applicable law, except as expressly provided in any certificate of designations relating to any series of Preferred Stock, this Third Amended and Restated Certificate of Incorporation may be amended by the affirmative vote of the holders of at least a majority of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
Article XIII
Section 13.1 Officer Exculpation. To the fullest extent permitted by applicable law, no officer of the Corporation will have any personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as an officer. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of officers, then the liability of an officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Neither the amendment nor the repeal of this Article XIII shall eliminate, reduce or otherwise adversely affect any limitation on the personal liability of an officer of the Corporation existing prior to such amendment or repeal.
***
Exhibit 3.2
SECONDTHIRD
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
JANUS INTERNATIONAL GROUP, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
Janus International Group, Inc., 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 Janus International Group, Inc. The Corporation was incorporated under the name Janus Parent, Inc. by the filing of its
original Certificate of Incorporation with the Secretary of State of the State of Delaware on December 18, 2020. The Amended and
Restated Certificate of Incorporation (the “Amended and Restated Certificate”)
of the Corporation was filed with the Secretary of State of the State of Delaware on June 7, 2021, changing the
name of the Corporation to Janus International Group, Inc. The Second
Amended and Restated Certificate of Incorporation of the Corporation was adopted on June 24, 2024 (the “Second Amended and
Restated Certificate”).
SECOND: The Board of Directors of the
Corporation, pursuant to a unanimous written consent, adopted resolutions authorizing
the Corporation to amend, integrate and restate the Second Amended
and Restated Certificate in its entirety to read as set forth in Exhibit A attached hereto and made a part hereof
(this “SecondThird
Amended and Restated Certificate”).
THIRD: This SecondThird
Amended and Restated Certificate restates and integrates and further amends the Second
Amended and Restated Certificate.
FOURTH: The SecondThird
Amended and Restated Certificate was duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation
Law of the State of Delaware, and was approved by the stockholders of the Corporation in accordance with the provisions of Section 242
of the General Corporation Law of the State of Delaware.
*****
IN WITNESS WHEREOF, Janus International Group, Inc.
has caused this SecondThird
Amended and Restated Certificate to be duly executed and acknowledged in its name and on its behalf by its duly authorized officer on
this 24th17th day
of June, 20242025.
| JANUS INTERNATIONAL GROUP, INC. | ||
| By: | /s/ Elliot Kahler | |
| Name: | Elliot Kahler | |
| Title: | Secretary | |
[Signature
Page to Second Amended and Restated Certificate of Incorporation]
Exhibit A
SECONDTHIRD
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
JANUS INTERNATIONAL GROUP, INC.
Article I
Section 1.1 Name. The name of the Corporation is Janus International Group, Inc. (the “Corporation”).
Article II
Section 2.1 Address. The registered office of the Corporation in the State of Delaware is 251 Little Falls Drive, Wilmington, County of New Castle, Delaware 19808; and the name of the Corporation’s registered agent at such address is Corporation Service Company.
Article III
Section 3.1 Purpose. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the General Corporation Law of the State of Delaware (the “DGCL”).
Article IV
Section 4.1 Capitalization.
The total number of shares of all classes of stock that the Corporation is authorized to issue is 826,000,000 shares, consisting of (i) 1,000,000
shares of Preferred Stock, par value $0.0001 per share (“Preferred Stock”) and (ii) 825,000,000 shares of Common
Stock, par value $0.0001 per share (“Common Stock”). The number of authorized shares of any of the Common Stock or
Preferred Stock may be increased or decreased (but not below the number of shares of such class or series then outstanding) by the affirmative
vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions
of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Common Stock
or Preferred Stock voting separately as a class shall be required therefor, unless a vote of any such holder is required pursuant to this
SecondThird Amended
and Restated Certificate of Incorporation or any certificate of designations relating to any series of Preferred Stock.
Section 4.2 Preferred Stock.
(A) The Board of Directors of the Corporation (the “Board”) is hereby expressly authorized, subject to any limitations prescribed by the DGCL, by resolution or resolutions, at any time and from time to time, 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 and the designation of such series, the voting powers (if any) of the shares of such series, and the powers, preferences and relative, participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, of the shares of such series and to cause to be filed with the Secretary of State of the State of Delaware a certificate of designations with respect thereto. 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.
(B) Except
as otherwise required by applicable law, holders of a series of Preferred Stock, as such, shall be entitled only to such voting rights,
if any, as shall expressly be granted thereto by this SecondThird
Amended and Restated Certificate of Incorporation (including any certificate of designations relating to such series).
Section 4.3 Common Stock.
(A) Voting Rights.
(1) Except
as otherwise provided in this SecondThird
Amended and Restated Certificate of Incorporation or as required by applicable law, each holder of Common Stock, as such, shall be entitled
to one vote for each share of Common Stock held of record by such holder on all matters on which stockholders generally are entitled to
vote; provided, however, that to the fullest extent permitted by applicable law, holders of Common Stock, as such, shall have no voting
power with respect to, and shall not be entitled to vote on, any amendment to this SecondThird
Amended and Restated Certificate of Incorporation (including any certificate of designations 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 SecondThird
Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock)
or pursuant to the DGCL.
(2) Except
as otherwise provided in this SecondThird
Amended and Restated Certificate of Incorporation or required by applicable law, at any annual or special meeting of the stockholders
of the Corporation, holders of the Common Stock shall vote together as a single class (or, if the holders of one or more series of Preferred
Stock are entitled to vote together with holders of the Common Stock, as a single class with the holders of such other series of Preferred
Stock) on all matters submitted to a vote of the stockholders having voting rights generally, and shall have the exclusive right to vote
for the election of directors and all other matters properly submitted to a vote of the stockholders.
(B) Dividends
and Distributions. Subject to applicable law, the terms of that certain Earnout Agreement, dated
as of June 7, 2021 (the “Closing Date”), by and among the Corporation and the
stockholders of the Corporation party thereto (the “Earnout Agreement”)
and the rights, if any, of the holders of any outstanding series of Preferred Stock having a preference over or the right to participate
with the Common Stock with respect to the payment of dividends and other distributions in cash, stock of any corporation or property of
the Corporation, the holders of Common Stock shall be entitled to receive ratably, in proportion to the number of shares held by each
such stockholder, such dividends and other distributions as may from time to time be declared by the Board in its discretion out of the
assets of the Corporation that are by law available therefor at such times and in such amounts as the Board in its discretion shall determine.
(C) Liquidation,
Dissolution or Winding Up. 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 of the preferential and
other amounts, if any, to which the holders of Preferred Stock having a preference over the Common Stock as to distributions upon dissolution
or liquidation or winding up shall be entitled, and subject to the terms of the Earnout Agreement, if
applicable, the holders of all outstanding shares of Common Stock shall be entitled to receive the remaining assets of
the Corporation available for distribution ratably in proportion to the number of shares held by each such stockholder.
Article V
Section
5.1 By-Laws. In furtherance and not in limitation of the powers conferred by the DGCL, the Board is
expressly authorized to make, amend, alter, change, add to or repeal the by-laws of the Corporation (as the same may be amended from
time to time, the “By-Laws”) without the assent or vote of the stockholders in any manner not inconsistent with the
laws of the State of Delaware or this SecondThird
Amended and Restated Certificate of Incorporation. Notwithstanding anything to the contrary contained
in this Second Amended and Restated Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote of
the stockholders, in addition to any vote of the holders of any class or series of capital stock of the Corporation required herein (including
any certificate of designations relating to any series of Preferred Stock), by the By-Laws or pursuant to applicable law, the affirmative
vote of the holders of at least 66 2/3% of the total voting power of all the then outstanding shares of stock of the Corporation entitled
to vote generally in the election of directors, voting together as a single class, shall be required in order for the stockholders of
the Corporation to alter, amend, repeal or rescind, in whole or in part, any provision of Article I, Article II or Article IV of the
By-Laws of the Corporation, or to adopt any provision inconsistent therewith and, with respect to any other provision of the By-Laws
of the Corporation, theThe affirmative vote of the
holders of at least a majority of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall be required in order for the stockholders of the Corporation
to alter, amend, repeal or rescind, in whole or in part, any such provision of the By-Laws of
the Corporation, or to adopt any provision inconsistent therewith.
Article VI
Section 6.1 Board of Directors.
(A) Except
as otherwise provided in this SecondThird
Amended and Restated Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under
the direction of the Board. The total number of directors constituting the whole Board shall be determined from time to time by resolution
adopted by the Board. ThePrior
to the 2028 annual meeting of stockholders, the directors (other than those directors elected by the holders of any series of
Preferred Stock, voting separately as a series or together with one or more other such series, as the case may be) shall be divided into
three classes designated Class I, Class II and Class III. Each,
with each class shall consistconsisting,
as nearly as possible, of one-third of the total number of such directors. At
the 2025 annual meeting of stockholders, the successors of the Class I directors shall initially
servewhose terms expired at that meeting were elected
for a term expiring at the first2028
annual meeting of stockholders following the Closing Date, Class II directors shall initially serve
for a term expiring at the second; at the 2026 annual
meeting of stockholders following the Closing Date and Class III directors shall initially serve
for a term expiring at the third annual meeting of stockholders following the Closing Date. At each annual meeting following the Closing
Date, successors to the class of, the successors of the
Class II directors whose term expiresterms
expire at that annual meeting shall be elected for a term expiring at the third
2028 annual meeting of stockholders; and at the 2027 annual
meeting of stockholders, the successors of the Class III directors whose terms expire at that meeting shall be elected for a term
expiring at the 2028 annual meeting of stockholders. Commencing with the 2028 annual meeting of stockholders, the Board will no longer
be classified and all directors shall be elected at that meeting and at all subsequent annual meetings of stockholders for a term expiring
at the next succeeding annual meeting of stockholders. IfUntil
the 2028 annual meeting of stockholders, if the number of such directors is changed,
any increase or decrease shall be apportioned by the Board among
the three classes so as to maintain the number of directors in each
class as nearly equal as possible, and any such additional director of any class elected to fill a newly
created directorship resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term
of that class, but in no case shall a decrease in the number of directors remove,
or shorten the term of, any incumbent director. Any
such director shall hold office until the annual meeting at which his or her term expires and until his or her successor shall be elected
and qualified, or his or her earlier death, resignation, or removal from office. The Board is authorized to assign members of the Board
already in office at the time such classification becomes effective to their respective class in accordance with that certain Investor
Rights Agreement, dated on June 7, 2021, by and among the Corporation and the stockholders of the Corporation party thereto (the
“Investor Rights Agreement”).
(B) Subject
to the rights granted to the holders of any one or more series of Preferred Stock then outstanding, any newly-created directorship on
the Board that results from an increase in the number of directors and any vacancy occurring in the Board (whether by death, resignation,
or removal) shall be filled only by the affirmative vote of a majority of the directors then in office, although less than a quorum,
or by a sole remaining director (and shall not be filled by the stockholders). Any director elected to fill a vacancy or newly created
directorship shall hold office until the next election of the (i) in
the event of a vacancy or newly created directorship occurring prior to the 2028 annual meeting of stockholders, for a term that shall
coincide with the remaining term of that class forin
which the vacancy occurred or new directorship was created or
occurred and until his or her successor shall be elected and qualified, or until his or herand
(ii) in the event of a vacancy or newly created directorship occurring at or after the 2028 annual meeting of stockholders, until
the following annual meeting of stockholders, or until the director’s earlier death, resignation, or removal.
(C) Any director may resign at any time upon notice to the Corporation given in writing or by any electronic transmission permitted by the By-Laws. Any or all of the directors (other than the directors elected by the holders of any series of Preferred Stock of the Corporation, voting separately as a series or together with one or more other such series, as the case may be) may be removed:
(1) at
any time prior to the 2028 annual meeting of stockholders, only for cause and only upon,
by the affirmative vote of the holders of at least 66 2/3%a
majority of the total voting power of all the then outstanding shares of stock
of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
In case the Board or any one or more directors should be so removed, new directors may be elected pursuant to Section 6.1(B).,
and
(2) at any time from and after the 2028 annual meeting of stockholders, with or without cause, by the affirmative vote of the holders of at least a majority of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
(D) Whenever
the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series
or separately as a class with one or more such other series, to elect directors at an annual or special meeting of stockholders, the election,
term of office, removal and other features of such directorships shall be governed by the terms of this SecondThird
Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock)
applicable thereto. Notwithstanding Section 6.1(A), the number of directors that may be elected by the holders of any such series
of Preferred Stock shall be in addition to the number fixed pursuant to Section 6.1(A) hereof, and the total number of directors
constituting the whole Board shall be automatically adjusted accordingly.
(E) Directors of the Corporation need not be elected by written ballot unless the By-Laws shall so provide.
Article VII
Section 7.1 Meetings of Stockholders. Any action required or permitted to be taken by the holders of stock of the Corporation must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing or by electronic transmission by such holders unless such action is recommended or approved by all directors of the Corporation then in office; provided, however, that any action required or permitted to be taken by the holders of series of Preferred Stock (to the extent expressly permitted by the certificate of designations relating to one or more series of Preferred Stock), voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing or by electronic transmission, setting forth the action so taken, shall be signed by the holders of outstanding shares of the relevant class or series having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded, or an information processing system, if any, designated by the Corporation for receiving such consents. Subject to the rights of the holders of any series of Preferred Stock, special meetings of the stockholders of the Corporation may be called only by or at the direction of the Board, the Chairman of the Board or the Chief Executive Officer of the Corporation or as otherwise provided in the By-Laws.
Article VIII
Section 8.1 Limited Liability of Directors. To the fullest extent permitted by applicable law, no director of the Corporation will have any personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Neither the amendment nor the repeal of this Article VIII shall eliminate, reduce or otherwise adversely affect any limitation on the personal liability of a director of the Corporation existing prior to such amendment or repeal.
Section 8.2 Director and Officer Indemnification and Advancement of Expenses. The Corporation, to the fullest extent permitted by law, shall indemnify and advance expenses to any Person (as defined below) made or threatened to be made a party to any action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the Corporation or any predecessor of the Corporation, or, while serving as a director or officer of the Corporation, serves or served at any other enterprise as a director or officer at the request of the Corporation or any predecessor to the Corporation.
Section 8.3 Employee and Agent Indemnification and Advancement of Expenses. The Corporation, to the fullest extent permitted by law, may indemnify and advance expenses to any Person made or threatened to be made a party to an action, suit or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she is or was an employee or agent of the Corporation or any predecessor of the Corporation, or serves or served at any other enterprise as an employee or agent at the request of the Corporation or any predecessor to the Corporation.
Article IX
Section 9.1 Competition and Corporate Opportunities.
(A) In recognition and anticipation that members of the Board who are not employees of the Corporation (“Non-Employee Directors”) and their respective Affiliates and Affiliated Entities (each, as defined below) may now 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, the provisions of this Article IX are set forth to regulate and define the conduct of certain affairs of the Corporation with respect to certain classes or categories of business opportunities as they may involve any of the Non-Employee Directors or their respective Affiliates and Affiliated Entities and the powers, rights, duties and liabilities of the Corporation and its directors, officers and stockholders in connection therewith.
(B) No Non-Employee Director or his or her Affiliates or Affiliated Entities (the Persons (as defined below) above being referred to, collectively, as “Identified Persons” and, individually, as an “Identified Person”) shall, to the fullest extent permitted by applicable law, have any duty to refrain from directly or indirectly (1) engaging in the same or similar business activities or lines of business in which the Corporation or any of its Affiliates, has historically engaged, now engages or proposes to engage at any time or (2) otherwise competing with the Corporation or any of its Affiliates, and, to the fullest extent permitted by applicable law, no Identified Person shall be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities. To the fullest extent permitted by applicable law, the Corporation hereby renounces any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity which may be a corporate opportunity for an Identified Person and the Corporation or any of its Affiliates, except as provided in Section 9.1(C). Subject to Section 9.1(C), in the event that any Identified Person acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity for itself, herself or himself and the Corporation or any of its Affiliates, such Identified Person shall, to the fullest extent permitted by applicable law, have no duty to communicate or offer such transaction or other business opportunity to the Corporation or any of its Affiliates and, to the fullest extent permitted by applicable law, shall not be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty as a stockholder, director or officer of the Corporation solely by reason of the fact that such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, or offers or directs such corporate opportunity to another Person.
(C) Subject to Section 9.1(D), the Corporation does not renounce its interest in any corporate opportunity offered to any Non-Employee Director if such opportunity is expressly offered or presented to such person solely in his or her capacity as a director or officer of the Corporation, and the provisions of Section 9.1(B) shall not apply to any such corporate opportunity.
(D) In addition to and notwithstanding the foregoing provisions of this Article IX, a corporate opportunity shall not be deemed to be a potential corporate opportunity for the Corporation if it is a business opportunity that (i) the Corporation is neither financially or legally able, nor contractually permitted to undertake, (ii) from its nature, is not in the line of the Corporation’s business or is of no practical advantage to the Corporation, (iii) is one in which the Corporation has no interest or reasonable expectancy, or (iv) is one presented to any Person for the benefit of a member of the Board or such member’s Affiliate over which such member of the Board has no direct or indirect influence or control, including, but not limited to, a blind trust.
(E) For purposes of this Article IX, (i) “Affiliate” shall mean (a) in respect of a member of the Board, any Person that, directly or indirectly, is controlled by such member of the Board (other than the Corporation and any entity that is controlled by the Corporation) and (b) in respect of the Corporation, any Person that, directly or indirectly, is controlled by the Corporation; (ii) “Affiliated Entity” shall mean (x) any Person of which a Non-Employee Director serves as an officer, director, employee, agent or other representative (other than the Corporation and any entity that is controlled by the Corporation), (y) any direct or indirect partner, stockholder, member, manager or other representative of such Person or (z) any person controlling, controlled by or under common control with any of the foregoing, including any investment fund or vehicle under common management; and (iii) “Person” shall mean any individual, corporation, general or limited partnership, limited liability company, joint venture, trust, association or any other entity.
(F) To the fullest extent permitted by applicable law, any Person purchasing or otherwise acquiring 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 IX.
(G) Any
alteration, amendment, addition to or repeal of this Article IX shall require the affirmative vote of at least 80% of the total
voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors,
voting together as a single class. Neither the alteration, amendment, addition to or repeal of this Article IX,
nor the adoption of any provision of this SecondThird
Amended and Restated Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock)
inconsistent with this Article IX, shall eliminate or reduce the effect of this Article IX 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 IX, would accrue
or arise, prior to such alteration, amendment, addition, repeal or adoption. This Article IX shall not limit any protections or
defenses available to, or indemnification or advancement rights of, any director or officer of the Corporation under this SecondThird
Amended and Restated Certificate of Incorporation, the By-Laws, thethat
certain Investor Rights Agreement, dated June 7, 2021, by and
among the Corporation and the stockholders of the Corporation party thereto, any indemnification agreement between such Person
and the Corporation or any of its subsidiaries, or applicable law.
Article X
Section 10.1 Severability.
If any provision of this SecondThird
Amended and Restated Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance
for any reason whatsoever, the validity, legality and enforceability of such provision in any other circumstance and of the remaining
provisions of this SecondThird
Amended and Restated Certificate of Incorporation (including, without limitation, each portion of any paragraph of this SecondThird
Amended and Restated Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not
itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby.
Article XI
Section 11.1 Forum.
Unless the Corporation consents in writing to the selection of an alternative forum, (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 current or former director, officer,
other employee, agent or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, or any claim for aiding
and abetting such alleged breach, (iii) any action asserting a claim against the Corporation or any current or former director, officer,
other employee, agent or stockholder of the Corporation (a) arising pursuant to any provision of the DGCL, this SecondThird
Amended and Restated Certificate of Incorporation (as it may be amended or restated) or the By-Laws or (b) as to which the DGCL confers
jurisdiction on the Delaware Court of Chancery or (iv) any action asserting a claim against the Corporation or any current or former
director, officer, other employee, agent or stockholder of the Corporation governed by the internal affairs doctrine of the law of the
State of Delaware shall, as to any action in the foregoing clauses (i) through (iv), to the fullest extent permitted by applicable
law, be solely and exclusively brought in the Court of Chancery of the State of Delaware (the “Delaware Court of Chancery”);
provided, however, that the foregoing shall not apply to any claim (a) as to which the Delaware Court of Chancery determines that
there is an indispensable party not subject to the jurisdiction of the Delaware Court of Chancery (and the indispensable party does not
consent to the personal jurisdiction of the Delaware Court of Chancery within ten days following such determination), (b) which is
vested in the exclusive jurisdiction of a court or forum other than the Delaware Court of Chancery, or (c) arising under federal
securities laws, including the Securities Act of 1933, as amended, as to which the federal district courts of the United States of America
shall, to the fullest extent permitted by applicable law, be the sole and exclusive forum. Notwithstanding the foregoing, the provisions
of this Article XI will not apply to suits brought to enforce any liability or duty created by the Exchange Act, or any other claim
for which the federal district courts of the United States of America shall be the sole and exclusive forum. If any action the subject
matter of which is within the scope of the forum provisions 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: (x) 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 the forum provisions (an “enforcement action”); and (y) having service of process made upon
such stockholder in any such enforcement action by service upon such stockholder’s counsel in the foreign action as agent for such
stockholder. Failure to enforce the foregoing provisions would cause the Corporation irreparable harm and the Corporation shall be entitled
to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions. To the fullest extent
permitted by applicable law, any person or entity purchasing or otherwise acquiring or holding 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 XI.
Article XII
Section 12.1 Amendments.
Notwithstanding anything contained in this SecondThird
Amended and Restated Certificate of Incorporation to the contrary, in addition to any vote required by applicable law, the
following provisions in this Second Amended and Restated Certificate of Incorporation may be amended, altered, repealed or rescinded,
in whole or in part, or any provision inconsistent therewith or herewith may be adopted, only by the affirmative vote of the holders
of at least 66 2/3% of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally
in the election of directors, voting together as a single class: Article V, Article VI, Article VII, Article VIII,
Article XI and this Article XII. Exceptexcept
as expressly provided in the foregoing sentence and the remainder of this Second Amended and Restated
Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock),
including Section 9.1(G), this SecondThird
Amended and Restated Certificate of Incorporation may be amended by the affirmative vote of the holders of at least a majority of the
total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors,
voting together as a single class.
Article XIII
Section 13.1 Officer Exculpation. To the fullest extent permitted by applicable law, no officer of the Corporation will have any personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as an officer. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of officers, then the liability of an officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Neither the amendment nor the repeal of this Article XIII shall eliminate, reduce or otherwise adversely affect any limitation on the personal liability of an officer of the Corporation existing prior to such amendment or repeal.
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