STOCKHOLDERS AGREEMENT OF SHIFT4 PAYMENTS, INC.
Exhibit 10.3
Execution Version
STOCKHOLDERS AGREEMENT OF
SHIFT4 PAYMENTS, INC.
THIS STOCKHOLDERS AGREEMENT, dated as of June 4, 2020 (as it may be amended, amended and restated or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), is entered into by and among Shift4 Payments, Inc., a Delaware corporation (the “Corporation”), Searchlight Capital Partners, L.P., a Delaware limited partnership (“Searchlight”), Searchlight II GWN, L.P., a Delaware limited partnership (“Searchlight GWN”), Searchlight Capital II, L.P., a Cayman Islands exempted limited partnership (“Main Fund”), Searchlight Capital II PV, L.P., a Cayman Islands exempted limited partnership (“Searchlight PV,” and together with Searchlight GWN and Seachlight Capital, the “Searchlight Holdcos”) and Rook Holdings, Inc., a Delaware corporation (“Rook Holdings,” and together with Searchlight, the “Original Members”). Certain terms used in this Agreement are defined in Section 7.
RECITALS
WHEREAS, each Original Member owns, directly or indirectly, outstanding membership interests in Shift4 Payments, LLC, a Delaware limited liability company (“Shift4 LLC”), which membership interests constitute and are defined as “Common Units” pursuant to the Sixth Amended and Restated Limited Liability Company Agreement of Shift4 LLC, dated as of June 4, 2020, as such agreement may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time (the “LLC Agreement” and such membership interests, the “Common Units”);
WHEREAS, the Corporation is contemplating an offering and sale of the shares of Class A common stock, par value $0.0001 per share, of the Corporation (the “Class A Common Stock”) in an underwritten initial public offering (the “IPO”) and using a portion of the net proceeds received from the IPO to purchase Common Units;
WHEREAS, pursuant to that certain Common Unit Subscription Agreement by and between the Corporation and Shift4 LLC, dated as of June 4, 2020 (the “Common Unit Subscription Agreement”) and that certain Common Unit Purchase Agreement by and among the Corporation and certain member(s) of Shift4 LLC parties thereto, dated as of June 4, 2020 (the “Common Unit Purchase Agreement”), the Corporation will hold Common Units;
WHEREAS, upon consummation of the transactions contemplated by the Common Unit Subscription Agreement and the Common Unit Purchase Agreement, it is contemplated that the Corporation will be admitted as a member, and appointed as the sole managing member of Shift4 LLC;
WHEREAS, in connection with, and prior to, the consummation of the IPO, it is anticipated that Searchlight, the Searchlight Holdcos, the Corporation and certain of their respective affiliates will enter into a series of related transactions pursuant to which the Searchlight Holdcos will become holders of the Corporation’s Class B Stock, par value $0.0001 per share (the “Class B Stock”) and the Corporation’s Class C Stock, par value $0.0001 per share (the “Class C Stock”);
WHEREAS, pursuant to that certain Purchase Agreement by and between the Corporation and Rook Holdings, dated May 31, 2020, it is anticipated that Rook Holdings will purchase up to $100,000,000 of Class C Stock from the Corporation in a private placement concurrently with the IPO at a purchase price per share equal to the IPO offering price per share of the Corporation Class A Common Stock;
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WHEREAS, immediately following the consummation of the IPO, Searchlight (together with the Searchlight Holdcos and any other Permitted Transferees of Searchlight, in such capacity, the “Searchlight Related Parties”) will be the record holder of shares of Class A Common Stock, Class B Stock and Class C Stock;
WHEREAS, immediately following the consummation of the IPO, Rook Holdings (and together with its Permitted Transferees, in such capacity, the “Rook Related Parties”) will be the record holders of shares of Class B Stock and Class C Stock; and
WHEREAS, in order to induce the Original Members (x) to approve the sale and issuance of Common Units by Shift4 LLC to the Corporation and the appointment of the Corporation as the sole managing member of Shift4 LLC in connection with the IPO and (y) to take such other actions as shall be necessary to effectuate the transactions contemplated by the IPO, the parties hereto desire to set forth their agreement with respect to the matters set forth herein in connection with their respective investments in the Corporation.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Corporation and the Original Members agree as follows:
Agreement
(a)Subject to this Section 1(a), the Searchlight Related Parties shall be entitled to designate for nomination by the Board up to two (2) Directors from time to time (any Director designated by the Searchlight Related Parties, a “Searchlight Director”). The Searchlight Directors shall be apportioned among the three (3) classes of Directors as nearly equal in number as possible. The right of the Searchlight Related Parties to designate the Searchlight Directors as set forth in this Section 1(a) shall be subject to the following: (i) if at any time the Searchlight Related Parties beneficially own, directly or indirectly, in the aggregate twenty-five percent (25%) or more of all issued and outstanding shares of Class A Common Stock (including for this purpose the Underlying Class A Shares), the Searchlight Related Parties shall be entitled to designate two (2) Searchlight Directors, and (ii) if at any time the Searchlight Related Parties beneficially own, directly or indirectly, in the aggregate less than twenty-five percent (25%) but at least ten percent (10%) or more of all issued and outstanding shares of Class A Common Stock (including for this purpose the Underlying Class A Shares), the Searchlight Related Parties shall only be entitled to designate one (1) Searchlight Director. The Searchlight Related Parties shall not be entitled to designate any Searchlight Directors in accordance with this Section 1(a) if at any time the Searchlight Related Parties beneficially own, directly or indirectly, in the aggregate less than ten percent (10%) of all issued and outstanding shares of Class A Common Stock (including for this purpose Underlying Class A Shares).
(b)Subject to this Section 1(b), the Rook Related Parties shall be entitled to designate for nomination by the Board two (2) Directors from time to time (any Director designated by the Rook Related Parties, a “Rook Director”). The Rook Directors shall be apportioned among the three (3) classes of Directors as nearly equal in number as possible. The right of the Rook Related Parties to designate the Rook Directors as set forth in this Section 1(b) shall be subject to the following: (i) if at any time the Rook Related Parties beneficially own, directly or indirectly, in the aggregate twenty-five percent (25%) or more of all issued and outstanding shares of Class A Common Stock (including for this purpose the Underlying Class A Shares), the Rook Related Parties shall be entitled to designate two (2) Rook Directors, and (ii) if at any time the Rook Related Parties beneficially own, directly or indirectly, in the aggregate less than twenty-five percent (25%) but at least ten percent (10%) or more of all issued and outstanding shares of Class A
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Common Stock (including for this purpose the Underlying Class A Shares), the Rook Related Parties shall only be entitled to designate one (1) Rook Director. The Rook Related Parties shall not be entitled to designate any Rook Directors in accordance with this Section 1(b) if at any time the Rook Related Parties beneficially own, directly or indirectly, in the aggregate less than ten percent (10%) of all issued and outstanding shares of Class A Common Stock (including for this purpose Underlying Class A Shares). Notwithstanding anything to the contrary set forth in this Section 1(b), so long as Xxxxx Xxxxxxxx serves as the Chief Executive Officer of the Corporation, Xx. Xxxxx Xxxxxxxx shall be nominated by the Board as a Director and in that capacity he shall serve as one of the Rook Directors.
(c)Subject to Section 1(a) and Section 1(b), each of Searchlight, the Searchlight Holdcos and Rook Holdings hereby agree to vote, or cause to be voted, all outstanding shares of Class A Common Stock, Class B Stock and/or Class C Stock, as applicable, held by the Searchlight Related Parties and the Rook Related Parties (or any of the Permitted Transferees) at any annual or special meeting of stockholders of the Corporation at which Directors of the Corporation are to be elected or removed, or to take all Necessary Action to cause the election or removal of the Searchlight Directors and the Rook Directors as a Director, as provided herein and to implement and enforce the provisions set forth in Section 3.
(a)If the number of Directors that the Searchlight Related Parties or the Rook Related Parties have the right to designate to the Board is decreased pursuant to Section 1(a) or Section 1(b) (each such occurrence, a “Decrease in Designation Rights”), then:
(i)unless a majority of Directors (with the affected party’s Board designees abstaining) agree in writing that a Director or Directors shall not resign as a result of a Decrease in Designation Rights, each of the Searchlight Related Parties or the Rook Related Parties, as applicable, shall use its reasonable best efforts to cause each of (x) the appropriate number of Searchlight Directors that the Searchlight Related Parties cease to have the right to designate to serve as a Searchlight Director or (y) the Rook Directors that the Rook Related Parties cease to have the right to designate to serve as the Rook Directors, respectively, to offer to tender his, her or their resignation(s), and each of such Searchlight Directors or Rook Directors so tendering a resignation, as applicable, shall resign within thirty (30) days from the date that the Searchlight Related Parties and/or the Rook Related Parties, as applicable, incurs a Decrease in Designation Rights. In the event any such Searchlight Director or Rook Director, as applicable, does not resign as a Director by such time as is required by the foregoing, the Searchlight Related Parties and the Rook Related Parties, as holders of Class A Common Stock, Class B Stock and Class C Stock, the Corporation and the Board, to the fullest extent permitted by law and, with respect to the Board, subject to its fiduciary duties to the Corporation’s stockholders, shall thereafter take all Necessary Action, including voting in accordance with Section 1(c), to cause the removal of such individual as a Director; and
(ii)the vacancy or vacancies created by such resignation(s) and/or removal(s) shall be filled with one or more Directors, as applicable, designated by the Board upon the recommendation of the Nominating and Corporate Governance Committee (with the affected party’s Board designees abstaining), so long as it is established.
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(b)Each of the Searchlight Related Parties and the Rook Related Parties shall have the sole right to request that one or more of their respective designated Directors, as applicable, tender their resignations as Directors of the Board (each, a “Removal Right”), in each case, with or without cause at any time, by sending a written notice to such Director and the Corporation’s Secretary stating the name of the Director or Directors whose resignation from the Board is requested (the “Removal Notice”). If the Director subject to such Removal Notice does not resign within thirty (30) days from receipt thereof by such Director, the Searchlight Related Parties and the Rook Related Parties, as holders of Class A Common Stock, Class B Stock and Class C Stock, the Corporation and the Board, to the fullest extent permitted by law and, with respect to the Board, subject to its fiduciary duties to the Corporation’s stockholders, shall thereafter take all Necessary Action, including voting in accordance with Section 1(c) to cause the removal of such Director from the Board (and such Director shall only be removed by the parties to this Agreement in such manner as provided herein).
(c)Except with respect to a Decrease in Designation Rights subject to Section 2(a), each of the Searchlight Related Parties and the Rook Related Parties, as applicable, shall have the exclusive right to designate a replacement Director for nomination or election by the Board to fill vacancies created as a result of not designating their respective Directors initially or by death, disability, retirement, resignation, removal (with or without cause) of their respective Directors, or otherwise by designating a successor for nomination or election by the Board to fill the vacancy of their respective Directors created thereby on the terms and subject to the conditions of Section 1.
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Section 3. |
Initial Directors and Corporate Governance. |
(a)Initial Directors. The initial Searchlight Directors pursuant to Section 1(a) shall initially be Xxxxxxxxxxx Xxxx (as a Class II Director) and Xxxxxx Xxxx (as a Class III Director). The initial Rook Directors pursuant to Section 1(b) shall initially be Xxxxx Xxxxxxxx (as a Class I Director) and Xxxxxx Xxxxxxxx (as a Class III Director). Xx. Xxxxx Xxxxxxxx shall serve as the initial Chairperson of the Board (as defined in the Bylaws) for the initial term, in accordance with this Agreement and the Bylaws, after which the Chairperson of the Board shall be determined in accordance with this Agreement and the Bylaws.
(b)Nominating Committee. For so long as the Rook Related Parties have the ability pursuant to Section 1(b) to designate for nomination at least one (1) Director, the Rook Related Parties shall have, to the fullest extent permitted by applicable law, subject to the New York Stock Exchange rules and in compliance with other applicable laws, rules and regulations, and subject to the requirements of the charter for the Nominating and Corporate Governance Committee, the right, but not the obligation, to designate one (1) member of the Nominating and Corporate Governance Committee. For so long as the Searchlight Related Parties have the ability pursuant to Section 1(a) to designate for nomination at least one (1) Director, the Searchlight Related Parties shall have, to the fullest extent permitted by applicable law, subject to the New York Stock Exchange rules and in compliance with other applicable laws, rules and regulations, and subject to the requirements of the charter for the Nominating and Corporate Governance Committee, the right, but not the obligation, to designate one (1) member of the Nominating and Corporate Governance Committee.
(c)Chief Executive Officer. Immediately following the consummation of the IPO, the Chief Executive Officer of the Corporation shall be Xxxxx Xxxxxxxx. Xx. Xxxxx Xxxxxxxx shall not be removed or terminated as Chief Executive Officer without “Cause” (as such term is defined in Xx. Xxxxx Xxxxxxxx’x employment agreement with the Company in effect as of the date hereof) without the approval of (i) a majority of the Directors comprising the Board and (ii) a majority of the Rook Directors, in each case with Xx. Xxxxx Xxxxxxxx recusing himself from such vote.
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In addition to any voting requirements contained in the organizational documents of the Corporation or any of its Subsidiaries, the Corporation shall not take, and shall cause Shift4 LLC and its Subsidiaries not to take, any of the following actions (whether by merger, consolidation or otherwise) without the prior written approval of (i) Searchlight and each of the Searchlight Holdcos for as long as the Searchlight Related Parties beneficially own, directly or indirectly, in the aggregate twenty-five percent (25%) or more of all issued and outstanding shares of Class A Common Stock (including for these purposes the Underlying Class A Shares) and (ii) Rook Holdings for as long as the Rook Holdings Related Parties beneficially own, directly or indirectly, in the aggregate of twenty-five percent (25%) or more of all issued and outstanding shares of Class A Common Stock (including for these purposes the Underlying Class A Shares):
(a)any transaction or series of related transactions, in each case, to the extent within the reasonable control of the Corporation, (i) in which any “person” or “group” (within the meaning of Sections 13(d) and 14(d) of the Exchange Act (excluding the Searchlight Related Parties, the Rook Related Parties and any “group” that includes the Searchlight Related Parties and the Rook Related Parties)) acquires, directly or indirectly, in excess of fifty percent (50%) of the then outstanding shares of any class of capital stock (or equivalent) of the Corporation, Shift4 LLC or any of their respective Subsidiaries (whether by merger, consolidation, sale or transfer of capital stock or partnership, membership or other equity interests, tender offer, exchange offer, reorganization, recapitalization or otherwise) or (ii) following which any “person” or “group” referred to in clause (i) hereof has the direct or indirect power to elect a majority of the members of the Board or to replace the Corporation as the sole manager of Shift4 LLC (or to add another Person as a co-manager of Shift4 LLC);
(b)the reorganization, recapitalization, voluntary bankruptcy, liquidation, dissolution or winding-up of the Corporation, Shift4 LLC or any of their respective Subsidiaries;
(c)the sale, lease or exchange of all or substantially all of the property and assets of the Corporation and its Subsidiaries, taken as a whole;
(d)any actions (including, without limitation, any debt recapitalizations, refinancings, amendments, revolver drawings, repayments, and compliance report review) with respect to the Corporation or its Subsidiaries’ debt capitalization (including, without limitation, any debt obligations outstanding as of the date of this Agreement) in excess of $100,000,000;
(e)the declaration or payment of any dividends or other distributions by the Corporation or its Subsidiaries;
(f)any buyback, purchase, repurchase, redemption or other acquisition by the Corporation or Shift4 LLC of any of the securities of the Corporation, Shift4 LLC or any of their respective Subsidiaries, other than repurchases made pursuant to any incentive plan adopted by the Board and stockholders of the Corporation or in connection with any redemption or exchange of Common Units as set forth in the LLC Agreement;
(g)the (i) resignation, replacement or removal of the Corporation as the sole manager of Shift4 LLC or (ii) appointment of any additional Person as a manager of Shift4 LLC;
(h)any acquisition or disposition of assets of the Corporation or any of its Subsidiaries where the aggregate consideration for such assets is greater than twenty-five million dollars ($25,000,000) in any
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single transaction or series of related transactions, other than transactions solely between or among the Corporation and/or one or more of the Corporation’s direct or indirect wholly owned subsidiaries;
(i)the creation of a new class or series of capital stock or equity securities of the Corporation, Shift4 LLC or any of their respective Subsidiaries;
(j)any issuance of additional shares of Class A Common Stock, Class B Stock, Class C Stock, Preferred Stock or other equity securities of the Corporation, Shift4 LLC or any of their respective Subsidiaries after the date hereof, other than any issuance of additional shares of Class A Common Stock or other equity securities of the Corporation or its Subsidiaries (i) under any stock option or other equity compensation plan of the Corporation or any of its Subsidiaries approved by the Board or the compensation committee of the Board, (ii) pursuant to the exercise or conversion of any options, warrants or other securities existing as of the date of this Agreement, or (iii) in connection with any redemption of Common Units as set forth in the LLC Agreement;
(k)any amendment or modification of the organizational documents of the Corporation, Shift4 LLC or any of their respective Subsidiaries, other than the LLC Agreement, which shall be subject to amendment or modification solely in accordance with the terms set forth therein;
(l)entering into, modifying, amending or terminating any material contract of the Corporation, Shift4 LLC or any of their respective Subsidiaries, other than for such modifications and terminations that are in the ordinary course of the Company’s business consistent with past practice;
(m)any new joint venture with a non-affiliate third-party;
(n)the commencement, settlement or compromise by the Corporation, Shift4 LLC or any of their respective Subsidiaries, of any litigation, claim, arbitration or other adversarial proceeding, governmental investigation, or proceeding involving an amount in dispute in excess of $500,000;
(o)any entering into, modifying, amending or terminating any employments, severance, change of control or other agreement or contract with the Chief Executive Officer of the Corporation;
(p)any hiring and/or termination of the Chief Executive Officer, Chief Financial Officer, Chief Strategy Officer, General Counsel, or other executive officer of the Corporation; or
(q)any increase or decrease of the size of the Board.
Notwithstanding anything in the organizational documents of the Corporation to the contrary, each of (i) the Rook Related Parties for as long as the Rook Related Parties beneficially own, directly or indirectly, in the aggregate twenty-five percent (25%) or more of all issued and outstanding shares of Class A Common Stock (including for these purposes the Underlying Class A Shares) and (ii) the Searchlight Related Parties for as long as the Searchlight Related Parties beneficially own, directly or indirectly, in the aggregate twenty-five percent (25%) or more of all issued and outstanding shares of Class A Common Stock (including for these purposes the Underlying Class A Shares), shall have the right to call a special meeting of stockholders of the Corporation for any purpose.
(a)The Corporation agrees to take all Necessary Action to (i) cause the Board to be comprised of at least seven (7) Directors or such other number of Directors as the Board may determine, subject to the
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terms of this Agreement, the Charter or the Bylaws of the Corporation; (ii) cause the individuals designated in accordance with Section 1 to be included in the slate of nominees to be elected to the Board at the next annual or special meeting of stockholders of the Corporation at which Directors are to be elected, in accordance with the Bylaws, Charter and General Corporation Law of the State of Delaware and at each annual meeting of stockholders of the Corporation thereafter at which such Director’s term expires; (iii) cause the individuals designated in accordance with Section 2(c) to fill the applicable vacancies on the Board, in accordance with the Bylaws, Charter, Securities Laws, General Corporation Law of the State of Delaware and the New York Stock Exchange rules; (iv) cause a Rook Director to be the Chairperson of the Board and (v) to adhere to, implement and enforce the provisions set forth in Section 4.
(b)The Searchlight Related Parties and the Rook Related Parties shall comply with the requirements of the Charter and Bylaws when designating and nominating individuals as Directors, in each case, to the extent such requirements are applicable to Directors generally. Notwithstanding anything to the contrary set forth herein, in the event that the Board determines, within sixty (60) days after compliance with the first sentence of this Section 5(b), in good faith, after consultation with outside legal counsel, that its nomination, appointment or election of a particular Director designated in accordance with Section 1 or Section 2, as applicable, would constitute a breach of its fiduciary duties to the Corporation’s stockholders or does not otherwise comply with any requirements of the Charter or Bylaws, then the Board shall inform the Searchlight Related Parties and/or the Rook Related Parties, as applicable, of such determination in writing and explain in reasonable detail the basis for such determination and shall, to the fullest extent permitted by law, nominate, appoint or elect another individual designated for nomination, election or appointment to the Board by the Searchlight Related Parties and/or the Rook Related Parties, as applicable (subject in each case to this Section 5(b)). The Board and the Corporation shall, to the fullest extent permitted by law, take all Necessary Action required by this Section 5 with respect to the election of such substitute designees to the Board.
(c)In addition to any voting requirements contained in this Agreement or the organizational documents of the Corporation or any of its Subsidiaries, the Corporation shall not, directly or indirectly, enter into or conduct business or operations or hold or acquire assets in its own name or otherwise other than through Shift4 LLC and its Subsidiaries without the prior written approval of (i) Searchlight and each of the Searchlight Holdcos for as long as the Searchlight Related Parties beneficially own, directly or indirectly, in the aggregate five percent (5%) or more of all issued and outstanding Common Units and (ii) Rook Holdings for as long as the Rook Holdings Related Parties beneficially own, directly or indirectly, in the aggregate five percent (5%) or more of all issued and outstanding Common Units, provided, however, that nothing in this clause (c) shall be deemed to prohibit the Corporation from, and no consent of Searchlight, Rook Holdings or any other Person shall be required for the Corporation to engage in, (i) holding or using cash received by the Corporation as a result of the Corporation’s investment in Shift4 LLC or (ii) re-investing cash into Shift4 LLC (whether by way of intercompany loan, investment or otherwise)..
This Agreement shall terminate upon the earliest to occur of any one of the following events:
(a)each of (i) the Searchlight Related Parties and (ii) the Rook Related Parties ceasing to own any shares of Class A Common Stock, Class B Stock or Class C Stock;
(b)each of (i) the Searchlight Related Parties and (ii) the Rook Related Parties ceasing to have any Director designation rights under Section 1 and
(c)the unanimous written consent of the parties hereto.
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For the avoidance of doubt, the rights and obligations (i) of the Searchlight Related Parties under this Agreement shall terminate upon the Searchlight Related Parties ceasing to own any shares of Class A Common Stock, Class B Stock or Class C Stock and (ii) of the Rook Related Parties under this Agreement shall terminate upon the Rook Related Parties ceasing to own any shares of Class A Common Stock, Class B Stock or Class C Stock. Notwithstanding the foregoing, nothing in this Agreement shall modify, limit or otherwise affect, in any way, any and all rights to indemnification, exculpation and/or contribution owed by any of the parties hereto, to the extent arising out of or relating to events occurring prior to the date of termination of this Agreement or the date the rights and obligations of such party under this Agreement terminates in accordance with this Section 6.
As used in this Agreement, any term that it is not defined herein, shall have the following meanings:
“Board” means the board of directors of the Corporation.
“Bylaws” means the amended and restated bylaws of the Corporation, dated as of the date hereof, as the same may be further amended, restated, amended and restated or otherwise modified from time to time.
“Charter” means the amended and restated certificate of incorporation of the Corporation, effective as of the date hereof, as the same may be further amended, restated, amended and restated or otherwise modified from time to time.
“Director” means a member of the Board.
“Necessary Action” means, with respect to a specified result, all commercially reasonable actions required to cause such result that are within the power of a specified Person, including (i) voting or providing a written consent or proxy with respect to the equity securities owned by the Person obligated to undertake the necessary action, (ii) voting in favor of the adoption of stockholders’ resolutions and amendments to the organizational documents of the Corporation, (iii) executing agreements and instruments, and (iv) making, or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such result.
“Nominating and Corporate Governance Committee” means the nominating and corporate governance committee of the Board or any committee of the Board authorized to perform the function of recommending to the Board the nominees for election as Directors or nominating the nominees for election as Directors.
“Permitted Transferees” has the meaning set forth in the Charter.
“Person” means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture, governmental authority or other entity or organization, including a government or any subdivision or agency thereof.
“Preferred Stock” means the shares of preferred stock, par value $0.0001 per share, of the Corporation.
“Securities Laws” means the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder.
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“Subsidiary” means with respect to any Person, any corporation, limited liability company, partnership, association, trust or other form of legal entity, of which (a) such first Person directly or indirectly owns or controls at least a majority of the securities or other interests having by their terms voting power to elect a majority of the board of directors or others performing similar functions, or (b) such first Person is a general partner or managing member (excluding partnerships in which such Person or any Subsidiary thereof does not have a majority of the voting interests in such partnership).
“Underlying Class A Shares” means (i) all shares of Class A Common Stock issuable upon redemption of Common Units, assuming all such Common Units are redeemed for Class A Common Stock on a one-for-one basis and (ii) all shares of Class C Common Stock.
Unless the context of this Agreement otherwise requires, (i) words of any gender include each other gender; (ii) words using the singular or plural number also include the plural or singular number, respectively; (iii) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement; (iv) the terms “Article” or “Section” refer to the specified Article or Section of this Agreement; (v) the word “including” shall mean “including, without limitation”; (vi) each defined term has its defined meaning throughout this Agreement, whether the definition of such term appears before or after such term is used; and (vii) the word “or” shall be disjunctive but not exclusive. References to agreements and other documents shall be deemed to include all subsequent amendments and other modifications thereto. References to statutes shall include all regulations promulgated thereunder and references to statutes or regulations shall be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation.
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Section 8. |
Choice of Law and Venue; Waiver of Right to Jury Trial. |
(a)THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE. EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF ANY BREACH OF THIS AGREEMENT, THE NON-BREACHING PARTY WOULD BE IRREPARABLY HARMED AND COULD NOT BE MADE WHOLE BY MONETARY DAMAGES, AND THAT, IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE ENTITLED AT LAW OR IN EQUITY, THE PARTIES SHALL BE ENTITLED TO SUCH EQUITABLE OR INJUNCTIVE RELIEF AS MAY BE APPROPRIATE. THE CHOICE OF FORUM SET FORTH IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OF A DELAWARE FEDERAL OR STATE COURT, OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SUCH A JUDGMENT, IN ANY OTHER APPROPRIATE JURISDICTION.
(b)IN THE EVENT ANY PARTY TO THIS AGREEMENT COMMENCES ANY LITIGATION, PROCEEDING OR OTHER LEGAL ACTION IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, THE PARTIES TO THIS AGREEMENT HEREBY (1) AGREE UNDER ALL CIRCUMSTANCES ABSOLUTELY AND IRREVOCABLY TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE, OR IF (AND ONLY IF) SUCH COURT FINDS IT LACKS SUBJECT MATTER JURISDICTION, THE SUPERIOR COURT OF THE STATE OF DELAWARE (COMPLEX COMMERCIAL DIVISION), OR IF UNDER APPLICABLE LAW, SUBJECT MATTER JURISDICTION OVER THE MATTER THAT IS THE SUBJECT OF THE ACTION OR PROCEEDING IS VESTED EXCLUSIVELY IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA, THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE, AND APPELLATE COURTS FROM ANY THEREOF, WITH RESPECT TO ALL ACTIONS AND
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PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY; (2) AGREE THAT IN THE EVENT OF ANY SUCH LITIGATION, PROCEEDING OR ACTION, SUCH PARTIES WILL CONSENT AND SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH COURT DESCRIBED IN CLAUSE (1) OF THIS SECTION 8(B) AND TO SERVICE OF PROCESS UPON THEM IN ACCORDANCE WITH THE RULES AND STATUTES GOVERNING SERVICE OF PROCESS; (3) AGREE TO WAIVE TO THE FULL EXTENT PERMITTED BY LAW ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH LITIGATION, PROCEEDING OR ACTION IN ANY SUCH COURT OR THAT ANY SUCH LITIGATION, PROCEEDING OR ACTION WAS BROUGHT IN ANY INCONVENIENT FORUM; (4) AGREE TO WAIVE ANY RIGHTS TO A JURY TRIAL TO RESOLVE ANY DISPUTES OR CLAIMS RELATING TO THIS AGREEMENT; (5) AGREE TO SERVICE OF PROCESS IN ANY LEGAL PROCEEDING BY MAILING OF COPIES THEREOF TO SUCH PARTY AT ITS ADDRESS SET FORTH HEREIN FOR COMMUNICATIONS TO SUCH PARTY; (6) AGREE THAT ANY SERVICE MADE AS PROVIDED HEREIN SHALL BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (7) AGREE THAT NOTHING HEREIN SHALL AFFECT THE RIGHTS OF ANY PARTY TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
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Section 9. |
Notices. |
Any notice, request, claim, demand, document and other communication hereunder to any party shall be effective upon receipt (or refusal of receipt) and shall be in writing and delivered personally or sent by facsimile, or by electronic mail, or first class mail, or by Federal Express or other similar courier or other similar means of communication, as follows:
(a)If to Searchlight or the Searchlight Holdcos, addressed as follows:
Searchlight Capital Partners, L.P.
000 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxxxx Xxxx
E-mail: xxxxx@xxxxxxxxxxx.xxx
with a copy (which copy shall not constitute notice) to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx Xxxxx
Facsimile: (000) 000-0000
E-mail: xxxxxxxxx.xxxxx@xx.xxx
(b)If to Rook Holdings, addressed as follows:
Rook Holdings, Inc.
0000 X. Xxxxxx Xx.
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
E-mail: xxxxx@xxxxxxxxx.xxx and xxxxx@xxxxx0.xxx
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with a copy (which shall not constitute notice) to:
Xxxx Xxxxxxx, P.C.
Attn: Xxxxxxxx X. Xxxxxxxxx and Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
E-mail: xxxxxxxxxx@xxxxxxxxxxx.xxx; xxxxxxxxx@xxxxxxxxxxx.xxx
(c)If to the Corporation, addressed as follows:
0000 X. Xxxxxx Xx.
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Attn: Xxxxxx Xxxxxxx, General Counsel and EVP, Legal
E-mail: xxxxxxxx@xxxxx0.xxx
with a copy (which copy shall not constitute notice) to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxx and Xxx Xxxxxxx
Facsimile: (000) 000-0000
E-mail: xxxx.xxxxx@xx.xxx; xxx.xxxxxxx@xx.xxx
or, in each case, to such other address or email address as such party may designate in writing to each party by written notice given in the manner specified herein. All such communications shall be deemed to have been given, delivered or made when so delivered by hand or sent by facsimile (with confirmed transmission), on the next business day if sent by overnight courier service (with confirmed delivery) or when received if sent by first class mail, or in the case of notice by electronic mail, when the relevant email enters the recipient’s server.
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Section 10. |
Assignment. |
Except as otherwise provided herein, all of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the respective successors and permitted assigns of the parties hereto. This Agreement may not be assigned (by operation of law or otherwise) without the express prior written consent of the other parties hereto, and any attempted assignment, without such consents, will be null and void; provided, however, that each of Searchlight, the Searchlight Holdcos and Rook Holdings is permitted to assign this Agreement to their respective Permitted Transferees. Each of Searchlight, the Searchlight Holdcos and Rook Holdings shall cause any of their respective Permitted Transferees to become a party to this Agreement.
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Section 11. |
Amendment and Modification; Waiver of Compliance. |
This Agreement may not be amended, modified, altered or supplemented except by means of a written instrument executed on behalf of each of the Corporation, Searchlight and Rook Holdings. Except as otherwise provided in this Agreement, any failure of any of the parties to comply with any obligation, covenant, agreement or condition herein may be waived by the party or parties entitled to the benefits thereof only by a written instrument signed by the party or parties granting such waiver, but such waiver or
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failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
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Section 12. |
Waiver. |
No failure on the part of either party hereto to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of either party hereto in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver thereof; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
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Section 13. |
Severability. |
If any provision of this Agreement, or the application of such provision to any Person or circumstance or in any jurisdiction, shall be held to be invalid or unenforceable to any extent, (i) the remainder of this Agreement shall not be affected thereby, and each other provision hereof shall be valid and enforceable to the fullest extent permitted by law, (ii) as to such Person or circumstance or in such jurisdiction such provision shall be reformed to be valid and enforceable to the fullest extent permitted by law and (iii) the application of such provision to other Persons or circumstances or in other jurisdictions shall not be affected thereby.
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Section 14. |
Counterparts. |
This Agreement may be executed in any number of counterparts and signatures may be delivered by facsimile, each of which may be executed by less than all parties, each of which shall be enforceable against the parties actually executing such counterparts, and all of which together shall constitute one instrument.
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Section 15. |
Further Assurances. |
At any time or from time to time after the date hereof, the parties hereto agree to cooperate with each other, and at the request of any other party, to execute and deliver any further instruments or documents and to take all such further action as any other party may reasonably request in order to evidence or effectuate the provisions of this Agreement and to otherwise carry out the intent of the parties hereunder.
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Section 16. |
Titles and Subtitles. |
The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.
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Section 17. |
Representations and Warranties. |
(a)Each of Searchlight, the Searchlight Holdcos, Rook Holdings and each Person who becomes a party to this Agreement after the date hereof, severally and not jointly and solely with respect to itself, represents and warrants to the Corporation as of the time such party becomes a party to this Agreement that (a) if applicable, it is duly authorized to execute, deliver and perform this Agreement; (b) this Agreement has been duly executed by such party and is a valid and binding agreement of such party, enforceable against such party in accordance with its terms; and (c) the execution, delivery and performance by such party of this Agreement does not violate or conflict with or result in a breach of or constitute (or with notice or lapse of time or both constitute) a default under any agreement to which such party is a party or, if applicable, the organizational documents of such party.
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(b)The Corporation represents and warrants to each other party hereto that (a) the Corporation is duly authorized to execute, deliver and perform this Agreement; (b) this Agreement has been duly authorized, executed and delivered by the Corporation and is a valid and binding agreement of the Corporation, enforceable against the Corporation in accordance with its terms; and (c) the execution, delivery and performance by the Corporation of this Agreement does not violate or conflict with or result in a breach by the Corporation of or constitute (or with notice or lapse of time or both constitute) a default by the Corporation under the Charter or Bylaws, any existing applicable law, rule, regulation, judgment, order, or decree of any governmental authority exercising any statutory or regulatory authority of any of the foregoing, domestic or foreign, having jurisdiction over the Corporation or any of its Subsidiaries or any of their respective properties or assets, or any agreement or instrument to which the Corporation or any of its Subsidiaries is a party or by which the Corporation or any of its Subsidiaries or any of their respective properties or assets may be bound.
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Section 18. |
No Strict Construction. |
This Agreement shall be deemed to be collectively prepared by the parties hereto, and no ambiguity herein shall be construed for or against any party based upon the identity of the author of this Agreement or any provision hereof.
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Exhibit 10.3
Execution Version
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written.
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By: |
/s/ Xxxxx Xxxxxxxx |
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Name: |
Xxxxx Xxxxxxxx |
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Title: |
Chief Executive Officer |
[Signature Page to Stockholders Agreement]
Exhibit 10.3
Execution Version
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SEARCHLIGHT CAPITAL PARTNERS, L.P. |
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By: |
Searchlight Capital Partners, LLC |
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its general partner |
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By: |
/s/ Xxxxxx Xxxx |
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Name: |
Xxxxxx Xxxx |
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Title: |
Authorized Person |
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SEARCHLIGHT CAPITAL II GWN, L.P. |
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By: |
Searchlight II GWN GP, LLC |
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its General Partner |
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By: |
/s/ Xxxxxx Xxxx |
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Name: |
Xxxxxx Xxxx |
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Title: |
Authorized Person |
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SEARCHLIGHT CAPITAL II, L.P. |
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By: |
Searchlight Capital Partners II GP, L.P. |
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its general partner |
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By: |
Searchlight Capital Partners II GP, LLC |
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its general partner |
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By: |
/s/ Xxxxxx Xxxx |
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Name: |
Xxxxxx Xxxx |
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Title: |
Authorized Person |
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SEARCHLIGHT CAPITAL II, PV, L.P. |
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By: |
Searchlight Capital Partners II GP, L.P. |
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its general partner |
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By: |
Searchlight Capital Partners II GP, LLC |
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its general partner |
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By: |
/s/ Xxxxxx Xxxx |
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Name: |
Xxxxxx Xxxx |
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Title: |
Authorized Person |
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[Signature Page to Stockholders Agreement]
Exhibit 10.3
Execution Version
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ROOK HOLDINGS, INC., |
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a Delaware corporation |
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By: |
/s/ Xxxxx Xxxxxxxx |
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Name: |
Xxxxx Xxxxxxxx |
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Title: |
President |
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[Signature Page to Stockholders Agreement]
