SPONSOR SUPPORT AGREEMENT
Exhibit 10.2
EXECUTION VERSION
This SPONSOR SUPPORT AGREEMENT, dated as of August 26, 2024 (this “Agreement”), by and among Concord Sponsor Group II LLC, a Delaware limited liability company (“Sponsor”), CA2 Co-Investment LLC, a Delaware limited liability company (“CA2” and, together with Sponsor, the “Sponsor Parties”), Concord Acquisition Corp II, a Delaware corporation (“Parent”) and Events.com, Inc., a California corporation (the “Company”).
WHEREAS, Parent, Concord Merger Sub, Inc., a California corporation and direct wholly-owned subsidiary of Parent (“Merger Sub”), and the Company, simultaneously with the execution of this Agreement, have entered into an agreement and plan of merger (the “Merger Agreement”; terms used but not defined in this Agreement shall have the meanings ascribed to them in the Merger Agreement), which provides, among other things, that, upon the terms and subject to the conditions thereof, Merger Sub will merge with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly-owned subsidiary of Parent; and
WHEREAS, as of the date hereof, each Sponsor Party is the record holder and the beneficial owner (as such term is defined in Rule 13d-3 under the Exchange Act) of, and has full voting power over (excluding, in each case, shares of stock underlying unexercised warrants, but including any shares of stock acquired upon exercise of such warrants), (a) shares of Parent Class B Stock as set forth opposite such Sponsor Party’s name on Exhibit A hereto (such Parent Class B Stock, together with any other shares of Parent Stock of which beneficial ownership or the power to vote is hereafter acquired by such Sponsor Party prior to the termination of this Agreement, collectively referred to herein as the “Shares”) and (b) certain Parent Warrants as set forth opposite such Sponsor Party’s name on Exhibit A hereto (such Parent Warrants, together with any other equity securities of Parent acquired by such Sponsor Party prior to the termination of this Agreement and the Shares, collectively referred to herein as the “Securities”).
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows:
1. Agreement to Vote. Subject to the earlier termination of this Agreement in accordance with Section 12, each Sponsor Party, severally and not jointly, irrevocably and unconditionally agrees that it (a) shall appear at the Parent Stockholder Meeting and any adjournment or postponement thereof and (b) at the Parent Stockholder Meeting or adjournment or postponement thereof, and in connection with any written consent of the stockholders of Parent, shall vote (or duly and promptly execute and deliver an action by written consent), or cause to be voted at such meeting (or cause such consent to be duly and promptly executed and delivered with respect to), all of its Shares (i) in favor of any proposal for the approval and adoption of the Merger Agreement, the transactions contemplated by the Merger Agreement (the “Transactions”), any other proposal submitted for approval by the stockholders of Parent in connection with the Transactions, and any other matters necessary for consummation of the Transactions, including the Merger, (ii) in favor of any proposal to adjourn a Parent Stockholder Meeting at which there is a proposal for stockholders of Parent to adopt the Merger Agreement to a later date if there are not sufficient votes to adopt the Merger Agreement or if there are not sufficient shares of Parent Stock present in person or represented by proxy at such Parent Stockholder Meeting to constitute a quorum, (iii) against any action, agreement or transaction or proposal that would result in a material breach of any covenant, representation or warranty or any other obligation or agreement of Parent under the Merger Agreement, or that would reasonably be expected to delay the consummation of the Transactions, increase the likelihood of the failure of the consummation of the Transactions or result in the failure of the Transactions from being consummated, (iv) against any merger agreement or merger (other than the Merger Agreement and the Merger), consolidation, combination, sale of substantial assets, reorganization, recapitalization, dissolution, liquidation or winding up of or by Parent, (v) against any change in the business, management or board of directors of Parent and (vi) against any action, transaction or agreement that change in any manner the dividend policy or capitalization of, including the voting rights of any class of capital stock of, Parent. Each Sponsor Party agrees not to enter into any commitment, agreement, understanding or similar arrangement with any person (as defined in the Merger Agreement) to vote or give voting instructions or express consent or dissent in writing in any manner inconsistent with the terms of this Section 1.
2. No Transfer of Securities.
(a) Subject to the earlier termination of this Agreement in accordance with Section 12, each of the Sponsor Parties, severally and not jointly, agrees that it shall not, except as otherwise contemplated by this Agreement, directly or indirectly, (i) sell, assign, transfer (including by operation of Law), gift, convey, lien, pledge, hypothecate, dispose of or otherwise encumber any of the Securities or grant any security interest in, or otherwise agree to do any of the foregoing, except for a sale, assignment or transfer of Securities pursuant to the Merger Agreement or to another stockholder of Parent (as contemplated by the Merger Agreement or as necessary for consummation of the Transactions) and which stockholder of Parent agrees to be bound by the terms and obligations hereof by executing and delivering to Parent and the Company a joinder agreement to this Agreement, (ii) grant or agree to grant any proxy, power of attorney or other right to vote any of the Securities, deposit any Securities into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, or (iii) enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of Law), or other disposition of any Securities; provided, that the foregoing shall not prohibit (A) the transfer of the Securities by a Sponsor Party to an affiliate thereof, but only if such affiliate agrees to be bound by the terms and obligations hereof by executing and delivering to Parent and the Company a joinder to this Agreement, and (B) private sales or transfers made by a Sponsor Party in connection with any forward purchase agreement or similar arrangement, a Parent Extension or the consummation of the Transactions, at prices no greater than the price at which the Securities were originally purchased, but only if the transferee thereof agrees to be bound by the terms and obligations hereof by executing and delivering to Parent and the Company a joinder to this Agreement; provided, further, that the nothing in this Agreement shall prohibit the conversion by a Sponsor Party of its shares of Parent Class B Stock into shares of Parent Common Stock as permitted under the Organizational Documents of Parent.
(b) For the avoidance of doubt, in the event any Sponsor Party converts its shares of Parent Class B Stock into shares of Parent Common Stock as permitted under the Organizational Documents of Parent, references to Parent Class B Stock in Section 6 of this Agreement shall be deemed to be references to Parent Common Stock received upon conversion of such Parent Class B Stock.
(c) This Section 2 shall be void and of no force and effect if the Merger Agreement shall be terminated or the Closing shall not occur for any reason.
3. Existing Letter Agreement; Waiver of Redemption Rights; Waiver of Initial Conversion Ratio Adjustment.
(a) Each of the Sponsor Parties, severally and not jointly, agrees (i) to comply with, and fully perform all of its obligations, covenants and agreements set forth in, that certain Letter Agreement, dated as of August 31, 2021, by and among Parent, the Sponsor Parties and the other parties thereto (as in effect as of the date hereof, the “Letter Agreement”), including the obligations of each of the Sponsor Parties pursuant to Section 1 therein to not redeem any shares of Parent Stock owned by such Sponsor in connection with the Transactions, (ii) not to terminate, cancel, amend, waive or otherwise modify the Letter Agreement without the Company’s prior written consent and (iii) not to otherwise redeem the Shares in connection with Transactions.
2
(b) Each of the Sponsor Parties, severally and not jointly, to the fullest extent permitted by law and the Organizational Documents of Parent, unconditionally and irrevocably agrees to waive the provisions of Section 4.3(b)(ii) set forth in the Parent Charter relating to the adjustment of the Initial Conversion Ratio (as defined in the Parent Charter) in connection with the Transactions.
(c) This Section 3 shall be void and of no force and effect if the Merger Agreement shall be terminated or the Closing shall not occur for any reason.
4. Confidentiality; No Solicitation. Each Sponsor Party, severally and not jointly, agrees to be bound by and subject to Section 5.7 (Access to Information; Confidentiality) and Section 5.13 (Nonsolicitation) of the Merger Agreement to the same extent as such provisions apply to Parent as if such Sponsor Party was a party thereto.
5. Sponsor Forfeiture. The Sponsor Parties hereby agree, subject to and conditioned upon the Closing, to forfeit (and execute such documents or certificates evidencing such forfeiture as Parent and/or the Company may reasonably request), concurrently with the Closing, an aggregate amount of 1,000,000 shares of Parent Class B Stock (the “Forfeited Founder Shares”). This Section 5 shall be void and of no force and effect if the Merger Agreement shall be terminated or the Closing shall not occur for any reason.
6. Sponsor Party Pro Rata Transfer/Forfeiture. The parties hereto agree that any transfer or forfeiture, as contemplated under this Agreement, of shares of Parent Class B Stock and Parent Warrants by the Sponsor Parties shall be made on a pro rata basis to the current ownership of shares of Parent Class B Stock or Parent Warrants, respectively, between the Sponsor Parties as set forth on Exhibit A hereto.
7. New Shares. In the event that (a) any shares of Parent Stock, Parent Warrants or other equity securities of Parent are issued to a Sponsor Party after the date of this Agreement pursuant to any stock dividend, stock split, recapitalization, reclassification, combination or exchange of shares of Parent Stock or Parent Warrants of, on or affecting the shares of Parent Stock or Parent Warrants owned by such Sponsor Party or otherwise, (b) a Sponsor Party purchases or otherwise acquires beneficial ownership of any shares of Parent Stock, Parent Warrants or other equity securities of Parent after the date of this Agreement, or (c) a Sponsor Party acquires the right to vote or share in the voting of any shares of Parent Stock or other equity securities of Parent after the date of this Agreement (such shares of Parent Stock, Parent Warrants or other equity securities of Parent, collectively the “New Securities”), then such New Securities acquired or purchased by such Sponsor Party shall be subject to the terms of Section 1, Section 2 and Section 3 of this Agreement to the same extent as if they constituted the shares of Parent Stock or Parent Warrants owned by such Sponsor Party as of the date hereof.
8. No Litigation. Each Sponsor Party hereby agrees not to commence, maintain or participate in, or facilitate, assist or encourage, and agrees to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, suit, proceeding or cause of action, in law or in equity, in any court or before any Governmental Entity (a) challenging the validity of, or seeking to enjoin or delay the operation of, any provision of this Agreement or the Merger Agreement (including any claim seeking to enjoin or delay the consummation of the Merger) or (b) alleging a breach of any fiduciary duty of any person in connection with the Merger Agreement or the Transactions. Notwithstanding the foregoing, nothing herein shall be deemed to prohibit a Sponsor Party from enforcing the Sponsor Party’s rights under this Agreement.
3
9. Parent Transaction Expenses. If the accrued and unpaid Parent Transaction Expenses exceeds $10,000,000 (the “Parent Expense Cap”), then, immediately prior to the Closing, Sponsor shall, at Sponsor’s election, (a) forfeit a number of shares of Parent Class B Stock (in addition to the Forfeited Founder Shares and with each share of Parent Class B Stock valued at $10 per share) that would, in the aggregate, have a value equal to the amount of the Parent Transaction Expenses minus the Parent Expense Cap (the “Overage”); or (b) pay, or cause to be paid, the Overage by wire transfer of immediately available funds in U.S. dollars to an account designated by the Company in writing.
10. Further Assurances. Each Sponsor Party agrees to execute and deliver, or cause to be executed and delivered, such further certificates, instruments and other documents and to take such further actions as Parent or the Company may reasonably request for the purpose of effectively carrying out the transactions contemplated by this Agreement.
11. Representations and Warranties. Each Sponsor Party, severally and not jointly, represents and warrants to Parent and the Company as follows:
(a) The execution, delivery and performance by such Sponsor Party of this Agreement and the consummation by such Sponsor Party of the transactions contemplated hereby do not and will not (i) conflict with or violate any United States or non-United States Law applicable to such Sponsor Party, (ii) require any consent, approval or authorization of, declaration, filing or registration with, or notice to, any person or entity, (iii) result in the creation of any encumbrance on any Securities (other than under this Agreement, the Merger Agreement and the agreements contemplated by the Merger Agreement, including the other Ancillary Agreements) or (iv) conflict with or result in a breach of or constitute a default under any provision of such Sponsor Party’s governing documents.
(b) As of the date of this Agreement, such Sponsor Party owns exclusively and has good and valid title to the Securities set forth opposite such Sponsor Party’s name on Exhibit A free and clear of any security interest, Lien, claim, pledge, proxy, option, right of first refusal, agreement, voting restriction, limitation on disposition, charge, adverse claim of ownership or use or other encumbrance of any kind, other than pursuant to (i) this Agreement, (ii) applicable securities Laws, (iii) the Organizational Documents of Parent and (iv) any non-redemption or similar agreements entered into in connection with a Parent Extension. As of the date of this Agreement, such Sponsor Party (A) has the sole power (as currently in effect) to vote and right, power and authority to sell, transfer and deliver the Securities, (B) has not entered into any voting agreement or voting trust, and has no knowledge and is not aware of any such voting agreement or voting trust in effect with respect to any of such Securities that is inconsistent with such Sponsor Party’s obligations pursuant to this Agreement or would reasonably be expected to prevent or delay the performance by such Sponsor Parties of its obligations under this Agreement, (C) has not granted a proxy or power of attorney with respect to any of such Sponsor Party’s Securities that is inconsistent with such Sponsor Party’s obligations pursuant to this Agreement, and has no knowledge and is not aware of any such proxy or power of attorney in effect, and (D) has not entered into any agreement or undertaking that is otherwise inconsistent with, or would interfere with, or prohibit or prevent it from satisfying, its obligations pursuant to this Agreement, and has no knowledge and is not aware of any such agreement or undertaking. Such Sponsor Party does not own, directly or indirectly, any shares of Parent Stock or other equity interests in Parent other than as set forth opposite such Sponsor Party’s name on Exhibit A.
(c) Such Sponsor Party has the power, authority and capacity to execute, deliver and perform this Agreement and this Agreement has been duly authorized, executed and delivered by such Sponsor Party.
(d) As of the date of this Agreement, there are no Actions pending against such Sponsor Party or, to the knowledge of such Sponsor Party, threatened against such Sponsor Party, that in any manner, questions the beneficial or record ownership of the Securities or the validity of this Agreement, or challenges or seeks to prevent, enjoin or materially delay the performance by such Sponsor Party of its obligations under this Agreement.
4
(e) Other than as provided in the Merger Agreement, no investment banker, broker, finder or other intermediary is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission for which Parent, the Company or any of their subsidiaries is or could be liable in connection with the Merger Agreement or this Agreement or any of the respective transactions contemplated hereby or thereby, in each case based upon arrangements made by or on behalf of such Sponsor Party.
(f) Each Sponsor Party understands and acknowledges that each of Parent and the Company is entering into the Merger Agreement in reliance upon such Sponsor Party’s execution and delivery of this Agreement.
12. Termination. Notwithstanding anything in this Agreement to the contrary, this Agreement and the obligations of the parties under this Agreement shall automatically terminate upon the earliest of (a) the Effective Time and (b) the termination of the Merger Agreement in accordance with its terms. Upon termination of this Agreement, none of the parties hereto shall have any further obligations or liabilities under this Agreement. Notwithstanding the foregoing, nothing in this Section 12 shall relieve any party of liability for any willful material breach of this Agreement occurring prior to termination. The representations and warranties contained in Section 11 of this Agreement and in any certificate or other writing delivered pursuant hereto shall not survive the Closing or the termination of this Agreement.
13. Miscellaneous.
(a) All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) electronically by e-mail (provided no “bounce back” or similar message of non-delivery is received) or physically by registered or certified mail (postage prepaid, return receipt requested) or delivery in person to the respective parties at the following addresses and e-mail addresses (or at such other address or email address for a party as shall be specified in a notice given in accordance with this Section 13(a)):
If to Parent prior to or on the Closing Date, or to Sponsor, to:
Concord Sponsor Group II LLC
477 Madison Avenue, 22nd Floor
New York, NY 10022
Attention: Jeff Tuder
Email: jeff@tremsoncapital.com
with a copy (which shall not constitute notice) to:
Greenberg Traurig, LLP
One Vanderbilt Avenue
New York, NY 10017
Attention: Michael Helsel; Jason Simon
Email: helselm@gtlaw.com; jason.simon@gtlaw.com
5
If to CA2, to:
CA2 Co-Investment LLC
599 Lexington Avenue
New York, NY 10022
Attention: Owen Littman
Email: owen.littman@cowen.com
If to the Company, to:
Events.com, Inc.
811 Prospect Street, Suite A
La Jolla, CA 92037
Attention: Mitch Thrower
Email:
with a copy (which shall not constitute notice) to:
Kirkland & Ellis LLP
2049 Century Park East, Suite 3700
Los Angeles, CA 90067
| Attention: | Damon R. Fisher, P.C. Dov Kogen | |
| Telephone: | (213) 680-8113 | |
| (310) 552-4383 |
E-mail: dfisher@kirkland.com; dov.kogen@kirkland.com
Kirkland & Ellis
LLP
601 Lexington Avenue
New York, NY 10022
| Attention: | Christian O. Nagler, P.C. | |
| Telephone: | (212) 446-4660 |
E-mail: cnagler@kirkland.com
(b) If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
(c) This Agreement is intended to create, and creates, a contractual relationship and is not intended to create, and does not create, any agency, partnership, joint venture or any like relationship between the parties hereto.
(d) This Agreement and any other Ancillary Agreement to which a Sponsor Party is a party constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, among the parties hereto, or any of them, with respect to the subject matter hereof. This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise) by any party hereto without the prior express written consent of the other parties hereto.
6
(e) This Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(f) This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed by each of the parties hereto.
(g) The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.
(h) This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware applicable to contracts executed in and to be performed in that State, without giving effect to principles or rules of conflicts of Laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in any Court of Chancery of the State of Delaware and any State of Delaware appellate court therefrom; provided, that if jurisdiction is not then available in the Court of Chancery of the State of Delaware, then any such legal Action may be brought in any federal court located in the State of Delaware. The parties hereto hereby (i) irrevocably submit to the exclusive jurisdiction of the aforesaid courts for themselves and with respect to their respective properties for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto, and (ii) agree not to commence any Action relating thereto except in the courts described above in Delaware, other than Actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each of the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action arising out of or relating to this Agreement or the transactions contemplated hereby, (A) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (B) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (C) that (x) the Action in any such court is brought in an inconvenient forum, (y) the venue of such Action is improper or (z) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(i) This Agreement may be executed and delivered (including by facsimile or portable document format (.pdf) transmission) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
(j) Without further consideration, each party hereto shall execute and deliver or cause to be executed and delivered such additional documents and instruments and take all such further action as may be reasonably necessary or desirable to consummate the transactions contemplated by this Agreement.
(k) This Agreement shall not be effective or binding upon any party hereto until after such time as the Merger Agreement is executed and delivered by Parent, Merger Sub and the Company.
7
(l) Each of the parties hereto hereby waives to the fullest extent permitted by applicable Law any right it may have to a trial by jury with respect to any Action directly or indirectly arising out of or relating to this Agreement or the transactions contemplated hereby. Each of the parties hereto (i) certifies that no Representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of any Action, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties hereto have been induced to enter into this Agreement and the transactions contemplated hereby, as applicable, by, among other things, the mutual waivers and certifications in this Section 13(l).
[Signature pages follow]
8
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| CONCORD SPONSOR GROUP II LLC |
| By: | /s/ Tim Kacani | |
| Name: | Tim Kacini | |
| Title: | Authorized Signatory |
[Signature page to Sponsor Support Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| CA2 CO-INVESTMENT LLC |
| By: | /s/ Jeffrey M. Solomon | |
| Name: | Jeffrey M. Solomon | |
| Title: | President, TD Cowen |
[Signature page to Sponsor Support Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| CONCORD ACQUISITION CORP II |
| By: | /s/ Jeff Tuder | |
| Name: | Jeff Tuder | |
| Title: | Chief Executive Officer | |
[Signature page to Sponsor Support Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| EVENTS.COM, INC. |
| By: | /s/ Mitch Thrower | |
| Name: | Mitch Thrower | |
| Title: | Chief Executive Officer |
[Signature page to Sponsor Support Agreement]
EXHIBIT A
OWNERSHIP OF SECURITIES
| Sponsor Party | Parent Class B Stock | Parent Warrants | ||||||
| Concord Sponsor Group II LLC | 6,458,490 | 4,262,121 | ||||||
| CA2 Co-Investment LLC | 481,061 | 587,879 | ||||||
| Sponsor / CA2 Ratio | 6,458,490 / 481,061 | 4,262,121 / 587,879 | ||||||
