AMENDMENT TO STOCKHOLDERS’ AGREEMENT
Exhibit 10.37
AMENDMENT TO
This Amendment (this “Amendment”) to the Stockholders’ Agreement, dated as of December 19, 2019 (the “Agreement”), by and among KLDiscovery Inc. (formerly known as Pivotal Acquisition Corp.), a Delaware corporation (the “Company”), CEOF II DE I AIV, L.P., a Delaware limited partnership (“CEOF AIV”), CEOF II Coinvestment (DE), L.P., a Delaware limited partnership (“CEOF Coinvest”), CEOF II Coinvestment B (DE), L.P., a Delaware limited partnership (“CEOF Coinvest B”), and Revolution Growth III, LP, a Delaware limited partnership (“Revolution” and, together with CEOF AIV, CEOF Coinvest and CEOF Coinvest B, the “LD Topco Holders”), is entered into as of March 23, 2020 (the “Amendment Date”), by and among the Company and the LD Topco Holders. All capitalized terms used in this Amendment and not otherwise defined herein shall have the respective meanings given to such terms in the Agreement.
RECITALS
WHEREAS, the parties to the Agreement desire to amend the Agreement as expressly provided in this Amendment pursuant to Section 16 of the Agreement.
NOW, THEREFORE, in consideration of the covenants, promises and representations set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows;
1.Amendment to Section 1(b). Section 1(b) of the Agreement is hereby amended and restated in its entirety and replaced for all purposes of the Agreement with the following (with deletions to the prior text shown in strikethrough, and additions shown with bold underline):
The Company shall take all necessary and desirable actions within its controlhas taken actions such that, as of the Effective Timeas of the Amendment Date: (i) the size of the Board shall beis set at eightnine members; and (ii) the following persons shall form the composition of the Board: (A) Xxxxxxx X. Xxxxxxxx, Xxxxxxxx Prior and Xxxxx Xxxxxxx shall be appointedare serving as Class A Directors with terms ending at the Company’s 2020 Annual Meeting; (B) Xxxxx Xxxxx, Xxxxxxxx X. Xxxxxxx and Xxxx Xxxxxx shall be appointedare serving as Class B Directors with terms ending at the Company’s 2021 Annual Meeting; and (C) Xxxxxxxxxxx X. Xxxxxx, Xxxxxx X. AkersonIan Fujiyama and Xxxxxxx Xxxxxx shall be appointedare serving as Class C Directors with terms ending at the Company’s 2022 Annual Meeting.
2.Amendment to Section 1(c). Section 1(c) of the Agreement is hereby amended and restated in its entirety and replaced for all purposes of the Agreement with the following (with deletions to the prior text shown in strikethrough, and additions shown with bold underline):
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(i) |
for so long as the LD Topco Holders (together with their Affiliates) Beneficially Own a number of shares of Common Stock equal to or greater than 65% of the total number of shares of Common Stock acquired by the LD Topco Holders on the date hereof, the LD Topco Holders holding a majority of the LD Topco Shares shall have the right to nominate, in the aggregate, a number of Nominees equal to six (less the number of LD Topco Directors who are not up for election), and the size of the Board shall be set at |
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(ii) |
for so long as the LD Topco Holders (together with their Affiliates) Beneficially Own a number of shares of Common Stock equal to or greater than 35% of the total number of shares of Common Stock acquired by the LD Topco Holders on the date hereof, but less than 65% of the total number of shares of Common Stock acquired by the LD Topco Holders on the date hereof, the LD Topco Holders holding a majority of the LD Topco Shares shall have the right to nominate, in the aggregate, a number of Nominees equal to three (less the number of LD Topco Directors who are then serving but not up for election), and the size of the Board shall be set at |
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(iii) |
for so long as the LD Topco Holders (together with their Affiliates) Beneficially Own a number of shares of Common Stock equal to or greater than 10% of the total number of shares of Common Stock acquired by the LD Topco Holders on the date hereof but less than 35% of the total number of shares of Common Stock acquired by the LD Topco Holders on the date hereof, the LD Topco Holders holding a majority of the LD Topco Shares shall have the right to nominate, in the aggregate, a number of Nominees equal to one (less the number of LD Topco Directors who are then serving but not up for election), and the size of the Board shall be set at |
provided, that, no reduction in the number of shares of Common Stock over which the LD Topco Holders and their Affiliates retain voting control shall shorten the term of any incumbent Director.
3.LD Topco Holders Approval. The LD Topco Holders hereby consent to the actions taken by the Company to increase the size of the Board as contemplated in this Amendment. For the avoidance of doubt, as of the Amendment Date, (a) the LD Topco Holders have not designated any Nominee in connection with a stockholder meeting and (b) as a result, no LD Topco Director yet exists.
4.Remaining Provision; References. Except as expressly modified by this Amendment, the Agreement shall remain in full force and effect. Each reference in the Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import referring to the Agreement, and each reference in any other document relating to the “Agreement,” “thereunder,” “thereof” or words of like import referring to the Agreement, means and references the Agreement as amended by this Amendment.
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5.Miscellaneous. Sections 8 (No Strict Construction), 11 (Counterparts), 12 (Governing Law), 13 (Jurisdiction; WAIVER OF TRIAL BY JURY) and 16 (Amendment and Waiver) of the Agreement shall apply to this Amendment, mutatis mutandis.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be duly executed as of the date first above written.
/s/ Xxxx Xxxxxx
By: _________________________________
Name:Xxxx Xxxxxx
Title:CFO
CEOF II DE I AIV, L.P.
By: CEOF II DE AIV GP, L.P., its general partner
By: CEOF II DE GP AIV, L.L.C., its general partner
/s/ Will Xxxxxx
By: _________________________________
Name:Will Xxxxxx
Title:Managing Director
CEOF II COINVESTMENT (DE), L.P.
By: CEOF II DE AIV GP, L.P., its general partner
By: CEOF II DE GP AIV, L.L.C., its general partner
/s/ Will Xxxxxx
By: _________________________________
Name:Will Xxxxxx
Title:Managing Director
CEOF II COINVESTMENT B (DE), L.P.
By: CEOF II DE AIV GP, L.P., its general partner
By: CEOF II DE GP AIV, L.L.C., its general partner
/s/ Will Xxxxxx
By: _________________________________
Name:Will Xxxxxx
Title:Managing Director
[Signature Page to Amendment to Stockholders’ Agreement]
REVOLUTION GROWTH III, LP
By: Revolution Growth GP III, L.P., its general partner
By: Revolution Growth UGP III, LLC, its general partner
/s/ Xxxxxx X. Xxxxxx
By: _________________________________
Name:Xxxxxx X. Xxxxxx
Title:Operating Manager
[Signature Page to Amendment to Stockholders’ Agreement]
