STOCKHOLDER’S AGREEMENT
STOCKHOLDER’S AGREEMENT
Dated as of [·], 2021
THIS STOCKHOLDER’S AGREEMENT (as amended, modified or supplemented in accordance with the terms hereof, this “Agreement”) is entered into as of [·], 2021 by and among Angel Oak Mortgage, Inc., a Maryland corporation (the “Company”), Falcons I, LLC, a Delaware limited liability company (the “Manager”), and VPIP AO MF LLC, a Delaware limited liability company (the “Investor”).
RECITALS
WHEREAS, in connection with the IPO (as defined herein), the Company intends to consummate the transactions described in the IPO Registration Statement (as defined herein);
WHEREAS, pursuant to the limited partnership agreement, as amended, of Angel Oak Mortgage Fund, LP (the “Fund”), the Investor, as a limited partner in the Fund, shall be receiving a distribution of shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”), from the Fund prior to or concurrently with the completion of the IPO;
WHEREAS, the Board (as defined herein) has, in connection with the Investor’s investment in the Fund, nominated and elected one individual designated by the Investor to serve as a director (the “Investor Designee”);
WHEREAS, an Investor Designee has been a member of the Board since September 2020; and
WHEREAS, the parties hereto have agreed to enter into this Agreement to set forth certain understandings and agreements with respect to certain corporate governance matters relating to the Company following the IPO.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Certain Defined Terms. As used herein, the following terms shall have the meanings as set forth below:
“Affiliate” of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. For the purposes of this definition, “control”, when used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing; provided, however, that notwithstanding the foregoing, neither the Company nor the Manager nor any of their respective controlled subsidiaries shall be deemed an Affiliate of the Investor.
“Agreement” has the meaning set forth in the Preamble.
“Beneficial Owner” of a security is a Person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise (other than solely through a revocable proxy) has or shares: (i) voting power, which includes the power to vote, or to direct the voting of, such security and/or (ii) investment power, which includes the power to dispose of, or to direct the disposition of, such security. The terms “Beneficially Own” and “Beneficial Ownership” shall have correlative meanings.
“Board” means the Board of Directors of the Company.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in the city of New York, New York are obligated by law to close.
“Bylaws” means the Bylaws of the Company, as the same may be amended, modified or restated from time to time.
“Charter” means the charter of the Company.
“Common Stock” has the meaning set forth in the Recitals.
“Company” has the meaning set forth in the Preamble.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.
“Fund” has the meaning set forth in the Recitals.
“Investor” has the meaning set forth in the Preamble.
“Investor Designee” has the meaning set forth in the Recitals.
“IPO” means the initial public offering of Common Stock, as described in the IPO Registration Statement.
“IPO Registration Statement” means the Registration Statement on Form S-11 (Registration No. 333-256301), as amended, of the Company.
“Person” means an individual or a corporation, partnership, limited liability company, association, trust, or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
“Resignation Date” has the meaning set forth in Section 2.1(a).
Section 1.2. Construction. Unless the context requires otherwise, the gender of all words used in this Agreement includes the masculine, feminine and neuter forms and the singular form of words shall include the plural and vice versa. Unless otherwise noted, all references to Articles and Sections refer to articles and sections of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation” (except to the extent the context otherwise provides). This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.
ARTICLE II
CORPORATE GOVERNANCE
Section 2.1. Board Matters.
(a) The Investor hereby agrees that, at such time as the Investor and its Affiliates shall Beneficially Own, in the aggregate, shares of Common Stock representing less than 10% of the shares of Common Stock then outstanding (excluding shares of Common Stock that are subject to issuance upon the exercise or exchange of rights of conversion, or any options, warrants or other rights to acquire shares of Common Stock), then, if the Investor Designee is then serving as a director on the Board at such time, the Investor shall cause the Investor Designee to promptly resign as a director of the Company (such time, the “Resignation Date”). All obligations of the Company and the Manager, and all rights of the Investor, under this Agreement shall terminate as of the Resignation Date.
(b) In addition to the foregoing, promptly upon the Company’s request at any time after a determination by the Board after consultation with outside legal counsel, that the Investor Designee, if then serving as a director of the Company, has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act, or any comparable successor provision, or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, the Investor shall cause the Investor Designee to promptly resign as a director of the Company. If the Investor Designee does not resign within fifteen (15) days of any such request, all obligations of the Company and the Manager, and all rights of the Investor, under this Agreement shall terminate.
(c) The Investor Designee serving as a director of the Company shall be subject to the policies and requirements of the Company and the Board, including the Company’s Corporate Governance Guidelines and the Company’s Code of Business Conduct and Ethics, in a manner consistent with the application of such policies and requirements to other members of the
Board. The Company shall indemnify, exculpate, and reimburse fees and expenses of the Investor Designee (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Investor Designee with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws, applicable law or otherwise.
ARTICLE III
REPRESENTATIONS AND COVENANTS
Section 3.1. Organization, Authority and Binding Effect.
(a) The Company is a corporation validly existing and in good standing under the laws of the State of Maryland. The Company has all requisite corporate power, capacity and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding obligation of the Company, enforceable against it in accordance with its terms (except as such enforcement may be subject to any applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or limiting creditors’ rights generally and except as the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought).
(b) The Manager is a limited liability company validly existing and in good standing under the laws of the State of Delaware. The Manager has all requisite limited liability company power, capacity and authority, as applicable, to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary limited liability company action on the part of the Manager. This Agreement has been duly executed and delivered by the Manager and constitutes the valid and binding obligation of the Manager, enforceable against it in accordance with its terms (except as such enforcement may be subject to any applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or limiting creditors’ rights generally and except as the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought).
(c) The Investor is a limited liability company validly existing and in good standing under the laws of the State of Delaware. The Investor has all requisite limited liability company power, capacity and authority, as applicable, to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby.
The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary limited liability company action on the part of the Investor. This Agreement has been duly executed and delivered by the Investor, and constitutes the valid and binding obligation of the Investor, enforceable against it in accordance with its terms (except as such enforcement may be subject to any applicable bankruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in effect relating to or limiting creditors’ rights generally and except as the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought).
ARTICLE IV
MISCELLANEOUS
Section 4.1. Termination. This Agreement shall automatically terminate and be of no further force and effect at the Resignation Date, except with respect to the Company’s obligations as provided in the last sentence of Section 2.1(c) hereof.
Section 4.2. Further Assurances. Each of the parties hereto agrees that it shall use commercially reasonable efforts to take, or cause to be taken, all actions necessary, proper or advisable to give effect to the obligations of the parties hereunder, including by executing and delivering such additional documents as may be reasonably necessary or desirable to effectuate this Agreement.
Section 4.3. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, portable document format (.pdf) or other electronic means shall be effective as delivery of a manually executed counterpart to this Agreement.
Section 4.4. Consents, Designations and Notices. All consents, designations, notices, requests, demands, claims and other communications which are required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given when received if personally delivered, when transmitted if transmitted by facsimile (with written confirmation of transmission) or electronic mail (read-receipt requested and received), and the Business Day after it is sent, if sent for next day delivery to a domestic address by recognized overnight delivery service (e.g., Federal Express). In each case notice shall be sent to:
(a) If to the Company:
Angel Oak Mortgage, Inc.
c/o Falcons I, LLC
0000 Xxxxxxxxx Xxxxx XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Dory Black
E-mail: xxxx.xxxxx@xxxxxxxxxxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Sidley Austin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: J. Xxxxxx Xxxxxxx
Facsimile: (000) 000-0000
E-mail: xxxxxxxx@xxxxxx.xxx
(b) If to the Manager:
Falcons I, LLC
0000 Xxxxxxxxx Xxxx XX, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Dory Black
E-mail: xxxx.xxxxx@xxxxxxxxxxxxxxx.xxx
(c) If to the Investor:
VPIP AO MF LLC
000 X. Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
E-mail: xxxxxxxxxx@xxxxxxxxxx.xxx
Any party hereto may change the address, electronic mail address or facsimile number to which consents, demands, notices, requests, demands, claims, and other communications hereunder are to be delivered by giving each other party hereto notice in the manner herein set forth.
Section 4.5. Governing Law; Judicial Proceedings; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to principles of conflicts of laws thereof. In any judicial proceeding involving any dispute, controversy or claim arising out of or relating to this Agreement, each of the parties unconditionally submits to the exclusive jurisdiction and venue in the Circuit Court for Baltimore City, Maryland, or if jurisdiction over the matter is vested exclusively in federal courts, the United States District Court for the District of Maryland, Northern Division, and the appellate courts to which orders and judgments thereof may be appealed. In any such judicial proceeding, the parties agree (a) to consent to the assignment of any proceeding in the Circuit Court for Baltimore City, Maryland to the Business and Technology Case Management Program pursuant to Maryland Rule 16-205 (or any successor thereof); and (b) that in addition to any method for the service of process permitted or required by such courts, to the fullest extent permitted by law, service of process may be made by delivery provided pursuant to the directions in Section 4.4. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 4.6. Enforcement. Each of the parties hereto acknowledges and agrees that the other parties would be damaged irreparably, and in a manner for which monetary damages would not be an adequate remedy, in the event any of the provisions of this Agreement are not performed in accordance with its specific terms or otherwise are breached. Accordingly, each of the parties hereto agrees that the other parties shall be entitled to seek an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any action instituted as provided in Section 4.5, in addition to any other remedy to which they may be entitled, at law or in equity and that each party hereto agrees to waive any requirements for the securing or posting of any bond or other security in connection with such remedy.
Section 4.7. Amendment and Modification; Waiver. This Agreement may not be amended, modified or supplemented, except by an instrument in writing signed on behalf of each of the parties hereto and any party subsequently made a party hereto. Any agreement on the part of a party hereto to any waiver of any obligation of the other parties shall be valid only if set forth in an instrument in writing signed on behalf of such waiving party. The failure of any party hereto to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights, nor shall any single or partial exercise by any party hereto of any of its rights under this Agreement preclude any other or further exercise of such rights or any other rights under this Agreement.
Section 4.8. Assignment. None of the rights, privileges, or obligations set forth in, arising under, or created by this Agreement may be assigned or transferred without the prior consent in writing of each of the Company, the Manager and the Investor.
Section 4.9. 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, (a) 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, (b) 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 (c) the application of such provision to other Persons or circumstances or in other jurisdictions shall not be affected thereby.
Section 4.10. Headings and Captions. The headings, subheadings and captions contained in this Agreement are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.
Section 4.11. Entire Agreement; Third Party Beneficiaries. This Agreement (a) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties hereto and their Affiliates with respect to the subject matter hereof and thereof and (b) is not intended to confer any rights, benefits, remedies, obligations or
liabilities upon any Person other than the parties hereto and thereto, as the case may be, and their respective successors and permitted assigns.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
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- Signature Page to VPIP Shareholder Rights Agreement — Angel Oak Mortgage, Inc.
