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As filed with the Securities and Exchange Commission on February 6, 2018

Registration No. 333-          


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549

FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

FTS INTERNATIONAL, INC.

(Exact name of registrant as specified in its charter)

Delaware
(State or other jurisdiction of
incorporation or organization)
  30-0780081
(I.R.S. Employer
Identification No.)

777 Main Street, Suite 2900
Fort Worth, Texas

(Address of Principal Executive Offices)

 

76102
(Zip Code)

FTS INTERNATIONAL, INC.
2018 EQUITY AND INCENTIVE COMPENSATION PLAN
(Full title of the plan)

Michael J. Doss
Chief Executive Officer
777 Main Street, Suite 2900
Fort Worth, Texas 76102
(Name and address of agent for service)
(817) 862-2000
(Telephone number, including area code, of agent for service)

        Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of "large accelerated filer," "accelerated filer," "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act. (Check one):

  Large accelerated filer  o   Accelerated filer  o   Non-accelerated filer  ý
(Do not check if a
smaller reporting company)
  Smaller reporting company  o

Emerging growth company  o

        If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  o

CALCULATION OF REGISTRATION FEE

               
 
Title of Securities
to be Registered

  Amount to be
Registered(1)

  Proposed Maximum
Offering Price Per
Share(2)

  Proposed Maximum
Aggregate Offering
Price(2)

  Amount of
Registration Fee(2)

 

Common Stock, par value $0.01 per share

  2,820,558 shares   $19.68   $55,508,581.44   $6,911

 

(1)
Pursuant to Rule 416 of the Securities Act of 1933, as amended, (the "Securities Act"), this Registration Statement on Form S-8 (the "Registration Statement") also covers such additional shares of common stock as may become issuable pursuant to the anti-dilution provisions of the FTS International, Inc. 2018 Equity and Incentive Compensation Plan (the "Plan").

(2)
Estimated solely for the purposes of determining the amount of the registration fee, pursuant to Rule 457(c) and (h) under the Securities Act, based upon the average of the high and low prices of the common stock of FTS International, Inc. (the "Company") as reported on The New York Stock Exchange on February 2, 2018.



PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

        The documents containing the plan information and other information required by Part I of Form S-8 will be sent or given to participants under the Plan as specified by Rule 428 under the Securities Act. In accordance with Rule 428 under the Securities Act and the requirements of Part I of Form S-8, such documents are not being filed with the Securities and Exchange Commission (the "Commission") either as a part of this Registration Statement or as a prospectus or prospectus supplement pursuant to Rule 424 under the Securities Act. The Company will maintain a file of such documents in accordance with the provisions of Rule 428 under the Securities Act. Upon request, the Company will furnish to the Commission or its staff a copy or copies of all of the documents included in such file.


PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3.    Incorporation of Documents by Reference.

        The following documents, which are on file with the Commission, are incorporated in this Registration Statement by reference:

    (a)
    the Company's prospectus filed on February 5, 2018 pursuant to Rule 424(b) under the Securities Act relating to the Registration Statement on Form S-1, as amended, (No. 333-215998), which contains audited financial statements for the Company's latest fiscal year for which such statements have been filed; and

    (b)
    the description of the Company's common stock, par value $0.01 per share, contained in the Company's Registration Statement on Form 8-A (Registration No. 001-38382) filed on February 2, 2018, including any amendment or report filed for the purposes of updating the description.

        All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") (excluding information deemed to be furnished and not filed with the Commission) subsequent to the effective date of this Registration Statement and prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, will be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing of such documents. Any statement contained in any document incorporated or deemed to be incorporated by reference herein will be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded will not be deemed, except as modified or superseded, to constitute a part of this Registration Statement.

Item 6.    Indemnification of Directors and Officers.

Indemnification

        Section 145 of the Delaware General Corporation Law ("DGCL") provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee, or agent of such corporation, or is or was serving at the request of such corporation as an officer, director, employee, or agent of another corporation or

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enterprise. The indemnity may include expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit, or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation's best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending, or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee, or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee, or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation's best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses that such officer or director has actually and reasonably incurred. The Company's amended and restated certificate of incorporation provides for the indemnification of the Company's directors and officers to the fullest extent permitted under the DGCL.

        Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:

    transaction from which the director derives an improper personal benefit;

    act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

    unlawful payment of dividends, unlawful stock purchase or redemption of shares; or

    breach of a director's duty of loyalty to the corporation or its stockholders.

        The Company's amended and restated certificate of incorporation includes such a provision. Expenses incurred by any officer or director in defending any such action, suit or proceeding in advance of its final disposition shall be paid by the Company, provided such director must repay amounts in excess of the indemnification such director is entitled to.

        Section 174 of the DGCL provides, among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.

        In connection with the Company's initial public offering, the Company entered into indemnification agreements with each of its current directors and executive officers. These agreements require the Company to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to the Company, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. The Company also intends to enter into indemnification agreements with its future directors and executive officers.

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Item 8.    Exhibits.

Exhibit
Number
  Description
  4.1   Amended and Restated Certificate of Incorporation of the Company

 

4.2

 

Amended and Restated Bylaws of the Company

 

4.3

 

Registration Rights Agreement

 

4.4

 

Investors' Rights Agreement by and among FTS International, Inc., Maju Investments (Mauritius) Pte Ltd and CHK Energy Holdings, Inc.

 

4.5

 

Investors' Rights Agreement by and among FTS International, Inc., Senja Capital Ltd and Hampton Asset Holding Ltd.

 

5.1

 

Opinion of Jones Day

 

23.1

 

Consent of Grant Thornton LLP

 

23.2

 

Consent of Jones Day (included in Exhibit 5.1)

 

24.1

 

Powers of Attorney (included on signature page)

 

99.1

 

FTS International, Inc. 2018 Equity and Incentive Compensation Plan

 

99.2

 

Form of Restricted Stock Unit Agreement under the 2018 Equity and Incentive Compensation Plan

Item 9.    Undertakings.

        (a)   The undersigned registrant hereby undertakes:

            (1)   To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

                (i)  To include any prospectus required by Section 10(a)(3) of the Securities Act;

               (ii)  To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement;

              (iii)  To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

      provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the registration statement is on Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.

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            (2)   That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

            (3)   To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

        (b)   The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

        (c)   Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

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SIGNATURES

        Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Fort Worth, State of Texas, on February 6, 2018.

    FTS INTERNATIONAL, INC.

 

 

By:

 

/s/ MICHAEL J. DOSS

        Name:   Michael J. Doss
        Title:   Chief Executive Officer


POWER OF ATTORNEY

        KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Michael J. Doss and Jennifer L. Keefe, and each of them, with the full power to act without the other, such person's true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign, execute and file this Registration Statement, and any or all amendments thereto (including, without limitation, post-effective amendments), with all exhibits and schedules thereto, and other documents in connection therewith with the Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing necessary or desirable to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitute or substitutes, may lawfully do or cause to be done.

        Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on February 6, 2018.

Signature
 
Title

 

 

 
/s/ MICHAEL J. DOSS

Michael J. Doss
  Chief Executive Officer and Director (Principal Executive Officer)

/s/ LANCE D. TURNER

Lance D. Turner

 

Chief Financial Officer and Treasurer (Principal Financial Officer and Accounting Officer)

/s/ GOH YONG SIANG

Goh Yong Siang

 

Chairman

/s/ DOMENIC J. DELL'OSSO, JR.

Domenic J. Dell'Osso, Jr.

 

Director

/s/ BRYAN J. LEMMERMAN

Bryan J. Lemmerman

 

Director

/s/ ONG TIONG SIN

Ong Tiong Sin

 

Director

/s/ BOON SIM

Boon Sim

 

Director

/s/ CAROL J. JOHNSON

Carol J. Johnson

 

Director


EXHIBIT INDEX

Exhibit
Number
  Description
  4.1   Amended and Restated Certificate of Incorporation of the Company
  4.2   Amended and Restated Bylaws of the Company
  4.3   Registration Rights Agreement
  4.4   Investors' Rights Agreement by and among FTS International, Inc., Maju Investments (Mauritius) Pte Ltd and CHK Energy Holdings, Inc.
  4.5   Investors' Rights Agreement by and among FTS International, Inc., Senja Capital Ltd and Hampton Asset Holding Ltd.
  5.1   Opinion of Jones Day
  23.1   Consent of Grant Thornton LLP
  23.2   Consent of Jones Day (included in Exhibit 5.1)
  24.1   Powers of Attorney (included on signature page)
  99.1   FTS International, Inc. 2018 Equity and Incentive Compensation Plan
  99.2   Form of Restricted Stock Unit Agreement under the 2018 Equity and Incentive Compensation Plan



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PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
SIGNATURES
POWER OF ATTORNEY
EXHIBIT INDEX

Exhibit 4.1

 

AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
FTS INTERNATIONAL, INC.

 

FTS International, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware or any applicable successor act thereto, as the same may be amended from time to time (the “ DGCL ”), hereby certifies as follows:

 

1.               The name of the corporation is FTS International, Inc. The date of the filing of its original certificate of incorporation with the Secretary of State of the State of Delaware was December 28, 2011.

 

2.               This Amended and Restated Certificate of Incorporation, which restates, integrates and amends the certificate of incorporation of the corporation, has been duly adopted by the corporation in accordance with Sections 242 and 245 of the DGCL and has been adopted by the requisite vote of the stockholders of the corporation, acting by written consent in lieu of a meeting in accordance with Section 228 of the DGCL.

 

3.               The certificate of incorporation is hereby amended and restated in its entirety to read as follows:

 

ARTICLE I

 

The name of the corporation is “FTS International, Inc.” (hereinafter called the “ Corporation ”).

 

ARTICLE II

 

The address of the Corporation’s registered office in the State of Delaware is 1675 South State Street, Suite B, City of Dover, County of Kent, 19901. The name of its registered agent at such address is Capitol Services, Inc.

 

ARTICLE III

 

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

 

ARTICLE IV

 

A.                                     Classes of Stock .  The total number of shares of all classes of capital stock that the Corporation is authorized to issue is 345,000,000 shares which shall be divided into two classes of stock to be designated “Common Stock” and “Preferred Stock”.  The total number of shares of Common Stock that the Corporation is authorized to issue is 320,000,000 shares, par value $0.01 per share. The total number of shares of Preferred Stock that the Corporation is authorized to issue is

 



 

25,000,000 shares, par value $0.01 per share. Subject to the rights of the holders of any series of Preferred Stock, the number of authorized shares of either the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of either the Common Stock or Preferred Stock voting separately as a class shall be required therefor.

 

B.                                     Common Stock .  The powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations and restrictions of the Common Stock are as follows:

 

1.                                       Ranking .  The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the rights of the holders of the Preferred Stock of any series as may be designated by the Board of Directors of the Corporation (the “ Board ”) upon any issuance of the Preferred Stock of any series.

 

2.                                       Voting .  Except as otherwise provided by law or by the resolution or resolutions providing for the issue of any series of Preferred Stock, the holders of outstanding shares of Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes. Notwithstanding any other provision of this Amended and Restated Certificate of Incorporation (as the same may be amended and/or restated from time to time, including the terms of any Preferred Stock Designation (as defined below), this “ Certificate of Incorporation ”) to the contrary, the holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation (including any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any Preferred Stock Designation) or the DGCL.

 

3.                                       Dividends .  Subject to the rights of the holders of Preferred Stock, holders of shares of Common Stock shall be entitled to receive such dividends and distributions and other distributions in cash, stock or property of the Corporation when, as and if declared thereon by the Board from time to time out of assets or funds of the Corporation legally available therefor.

 

4.                                       Liquidation .  Subject to the rights of the holders of Preferred Stock, shares of Common Stock shall be entitled to receive the assets and funds of the Corporation available for distribution in the event of any liquidation, dissolution or winding up of the affairs of the Corporation, whether voluntary or involuntary. A liquidation, dissolution or winding up of the affairs of the Corporation, as such terms are used in this Section B.4., shall not be deemed to be occasioned by or to include any consolidation or merger of the Corporation with or into any other person or a sale, lease, exchange or conveyance of all or a part of its assets.

 

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C.                                     Preferred Stock .

 

Shares of Preferred Stock may be issued from time to time in one or more series. The Board is hereby authorized to provide by resolution or resolutions from time to time for the issuance, out of the unissued shares of Preferred Stock, of one or more series of Preferred Stock, without stockholder approval, by filing a certificate pursuant to the applicable law of the State of Delaware (the “ Preferred Stock Designation ”), setting forth such resolution and, with respect to each such series, establishing the number of shares to be included in such series, and fixing the voting powers, full or limited, or no voting power of the shares of such series, and the designation, preferences and relative, participating, optional or other special rights, if any, of the shares of each such series and any qualifications, limitations or restrictions thereof.  The powers, designation, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations and restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.  The authority of the Board with respect to each series of Preferred Stock shall include, but not be limited to, the determination of the following:

 

1.                                       the designation of the series, which may be by distinguishing number, letter or title;

 

2.                                       the number of shares of the series, which number the Board may thereafter (except where otherwise provided in the Preferred Stock Designation) increase or decrease (but not below the number of shares thereof then outstanding);

 

3.                                       the rights in respect of any dividends (or methods of determining the dividends), if any, payable to the holders of the shares of such series, any conditions upon which such dividends shall be paid, the amounts or rates at which dividends will be payable on, and the preferences, if any, of shares of the series in respect of dividends, and whether such dividends, if any, shall be cumulative or noncumulative;

 

4.                                       the dates on which dividends, if any, shall be payable;

 

5.                                       the redemption rights and price or prices, if any, for shares of the series (which may be cash, property or rights, including securities of the Corporation or another corporation or entity) for which, the period or periods within which and the other terms and conditions upon which the shares of such series may be redeemed, in whole or in part, at the option of the Corporation or at the option of the holder or holders thereof or upon the happening of a specified event or events, if any, including the obligation, if any, of the Corporation to purchase or redeem shares of such series pursuant to a sinking fund or otherwise;

 

6.                                       the terms and amount of any sinking fund, if any, provided for the purchase or redemption of shares of the series;

 

7.                                       the amounts payable on, and the preferences, if any, of, shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation;

 

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8.                                       whether the shares of the series shall be convertible into or exchangeable for, shares of any other class or series, or any other security, of the Corporation or any other corporation, and, if so, the specification of such other class or series or such other security, the conversion or exchange price or prices or rate or rates, any adjustments thereof, the date or dates at which such shares shall be convertible or exchangeable and all other terms and conditions upon which such conversion or exchange may be made;

 

9.                                       restrictions on the issuance of shares of the same series or any other class or series;

 

10.                                the voting rights, if any, of the holders of shares of the series generally or upon specified events; and

 

11.                                any other powers, preferences and relative, participating, optional or other special rights of each series of Preferred Stock, and any qualifications, limitations or restrictions of such shares, all as may be determined from time to time by the Board and stated in the resolution or resolutions providing for the issuance of such Preferred Stock.

 

Without limiting the generality of the foregoing, the resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by law.

 

ARTICLE V

 

A.                                     General Powers .  The business and affairs of the Corporation shall be managed by or under the direction of the Board, except as otherwise provided by law.

 

B.                                     Number of Directors .  Subject to the rights of holders of any series of Preferred Stock to elect directors, the number of the directors of the Corporation shall be fixed from time to time by resolution of the Board.

 

C.                                     Classes of Directors .  Subject to the rights of holders of any series of Preferred Stock to elect directors, the Board shall be and is divided into three classes, designated Class I, Class II and Class III. Each class shall consist, as nearly as may be possible, of one third of the total number of directors constituting the entire Board.

 

D.                                     Terms of Office .  Subject to the rights of holders of any series of Preferred Stock to elect directors, each director shall serve for a term ending on the date of the third annual meeting of stockholders following the annual meeting of stockholders at which such director was elected; provided that each director initially elected to Class I shall serve for a term expiring at the Corporation’s first annual meeting of stockholders held after the effectiveness of this Certificate of Incorporation; each director initially elected to Class II shall serve for a term expiring at the Corporation’s second annual meeting of stockholders held after the effectiveness of this Certificate of Incorporation; and each director initially elected to Class III shall serve for a term expiring at the Corporation’s third annual meeting of stockholders held after the effectiveness of this Certificate of Incorporation; provided, further, that the term of each director

 

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shall continue until the election and qualification of his or her successor and be subject to his or her earlier death, disqualification, resignation or removal.

 

E.                                      Vacancies .  Subject to the (i) rights of holders of any series of Preferred Stock and (ii) the provisions of the Investors’ Rights Agreement by and among the Corporation, Maju Investments (Mauritius) Pte Ltd (“ Maju ”) and CHK Energy Holdings, Inc. (“ CHK ”), dated February 1, 2018 (the “ Maju and CHK Investors’ Rights Agreement ”), and the Investors’ Rights Agreement by and among the Corporation, Senja Capital Ltd and Hampton Asset Holding Ltd. (collectively, “ Senja ”), dated February 1, 2018 (the “ Senja Investors’ Rights Agreement ” and together with the Maju and CHK Investors’ Rights Agreement, the “ Investors’ Rights Agreements ”), any newly created directorship that results from an increase in the number of directors or any vacancy on the Board that results from the death, disability, resignation, disqualification or removal of any director or from any other cause shall be filled solely by the affirmative vote of a majority of the total number of directors then in office, even if less than a quorum, or by a sole remaining director and shall not be filled by the stockholders. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall hold office for the remaining term of his or her predecessor.

 

F.                                       Removal .  Subject to the rights of the holders of any series of Preferred Stock, any director or the entire Board may be removed from office at any time, but only for cause by the affirmative vote of holders of at least 66 2/3% of the then-outstanding voting stock of the Corporation entitled to vote thereon. However, at any time Maju, CHK or Senja (each a “ Nominating Stockholder ”) have the contractual right under the Investors’ Rights Agreements to nominate a director for election to the Board (the “ Nominated Director ”), such Nominated Director if elected may, to the fullest extent permitted by law, only be removed from office by the applicable Nominating Stockholder.

 

G.                                     Committees .  Pursuant to the Amended and Restated Bylaws of the Corporation (as the same may be amended and/or restated from time to time, the “ Bylaws ”), the Board may establish one or more committees to which may be delegated any or all of the powers and duties of the Board to the fullest extent permitted by law.

 

H.                                    Stockholder Nominations and Introduction of Business .  Subject to the provisions of the Investors’ Rights Agreements, advance notice of stockholder nominations for election of directors and other business to be brought by stockholders before a meeting of stockholders shall be given in the manner provided by the Bylaws.

 

ARTICLE VI

 

Unless and except to the extent that the Bylaws shall so require, the election of directors of the Corporation need not be by written ballot.

 

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ARTICLE VII

 

To the fullest extent permitted by the DGCL, as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. No repeal or modification of this Article VII shall apply to or have any adverse effect on any right or protection of, or any limitation of the liability of, a director of the Corporation existing at the time of such repeal or modification with respect to acts or omissions occurring prior to such repeal or modification.

 

ARTICLE VIII

 

The Corporation may indemnify, and advance expenses to, to the fullest extent permitted by law, any person who was or is a party to or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.

 

ARTICLE IX

 

Subject to the terms of any series of Preferred Stock, any action required or permitted to be taken by the stockholders of the Corporation must be effected at an annual or special meeting of the stockholders and may not be effected by written consent in lieu of a meeting.

 

ARTICLE X

 

Special meetings of stockholders for any purpose or purposes may be called at any time by (A) the Board (by resolution adopted by a majority of the total number of authorized directors), the Chief Executive Officer or the Chair of the Board or (B) the Secretary of the Corporation upon the written request of holders owning at least 25% of the issued and outstanding Common Stock, and may not be called by any other person or persons. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.

 

ARTICLE XI

 

If any provision or provisions (or any part thereof) of this Amended and Restated Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Amended and Restated Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Amended and Restated Certificate of Incorporation containing any such

 

6



 

provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (ii) to the fullest extent possible, the provisions of this Amended and Restated Certificate of Incorporation (including, without limitation, each such portion of any paragraph of this Amended and Restated Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service or for the benefit of the Corporation to the fullest extent permitted by law.

 

ARTICLE XII

 

A.                                     Business Combinations; Section 203 .  The Corporation hereby expressly elects not to be governed by Section 203 of the DGCL.

 

B.                                     Restrictions; Exceptions .  Notwithstanding the foregoing, the Corporation shall not engage in any business combination (as defined below), at any point in time at which the Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act, with any interested stockholder (as defined below) for a period of three years following the time that such stockholder became an interested stockholder, unless:

 

1.                                       prior to such time, the Board approved either the business combination or the transaction that resulted in the stockholder becoming an interested stockholder; or

 

2.                                       upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (i) persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or

 

3.                                       at or subsequent to such time, the business combination is approved by the Board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the then-outstanding voting stock of the Corporation entitled to vote thereon and that is not owned by the interested stockholder.

 

C.                                     Definitions .  For purposes of this Article XII, references to:

 

1.                                       affiliate ” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person.

 

2.                                       associate ,” when used to indicate a relationship with any person, means: (i) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock; (ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii)

 

7



 

any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.

 

3.                                       business combination ,” when used in reference to the Corporation and any interested stockholder of the Corporation, means:

 

i.                                           any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation (a) with the interested stockholder or (b) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or consolidation Section B. of this Article XII is not applicable to the surviving entity;

 

ii.                                        any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation, which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the Corporation;

 

iii.                                     any transaction that results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (a) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary, which securities were outstanding prior to the time that the interested stockholder became such; (b) pursuant to a merger under Section 251(g) of the DGCL; (c) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary, which security is distributed, pro rata, to all holders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (d) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (e) any issuance or transfer of stock by the Corporation; provided, however, that in no case under clauses (c)-(e) of this subsection iii. shall there be an increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional share adjustments);

 

iv.                                    any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation that has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the Corporation or of any such subsidiary that is owned by the interested stockholder, except as a

 

8



 

result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly, by the interested stockholder; or

 

v.                                       any receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial benefits (other than those expressly permitted in subsections i.-iv. above) provided by or through the Corporation or any direct or indirect majority-owned subsidiary.

 

4.                                       control ,” including the terms “ controlling ,” “ controlled by ” and “ under common control with ,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of 20% or more of the outstanding voting stock of any corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this Article XII, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.

 

5.                                       Exchange Act ” means the Securities Exchange Act of 1934.

 

6.                                       Maju Direct Transferee ” means any person that acquires (other than through a registered public offering or through a broker’s transaction executed on any securities exchange or other over-the-counter market) directly from Maju or any of its affiliates or successors or a “group,” or any member of any such group, of which such persons are a party under Rule 13d-5 of the Exchange Act, beneficial ownership of 5% or more of the then-outstanding voting stock of the Corporation; provided that such person was not an “interested stockholder” prior to such acquisition.

 

7.                                       Maju Indirect Transferee ” means any person that acquires (other than through a registered public offering or through a broker’s transaction executed on any securities exchange or other over-the-counter market) directly from any Maju Direct Transferee or any other Maju Indirect Transferee beneficial ownership of 5% or more of the then-outstanding voting stock of the Corporation; provided that such person was not an “interested stockholder” prior to such acquisition.

 

8.                                       CHK Direct Transferee ” means any person that acquires (other than through a registered public offering or through a broker’s transaction executed on any securities exchange or other over-the-counter market) directly from CHK or any of its affiliates or successors or any “group,” or any member of any such group, of which such persons are a party under Rule 13d-5 of the Exchange Act, beneficial ownership of 5% or more of the then-outstanding voting stock of the Corporation; provided that such person was not an “interested stockholder” prior to such acquisition.

 

9



 

9.                                       CHK Indirect Transferee ” means any person that acquires (other than through a registered public offering or through a broker’s transaction executed on any securities exchange or other over-the-counter market) directly from any CHK Direct Transferee or any other CHK Indirect Transferee beneficial ownership of 5% or more of the then-outstanding voting stock of the Corporation; provided that such person was not an “interested stockholder” prior to such acquisition.

 

10.                                interested stockholder ” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation) that (i) is the owner of 15% or more of the then-outstanding shares of voting stock of the Corporation, or (ii) is an affiliate or associate of the Corporation and was the owner of 15% or more of the then-outstanding shares of voting stock of the Corporation at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder; and the affiliates and associates of such person; provided, however, that “interested stockholder” shall not include (a) Maju, any Maju Direct Transferee, any Maju Indirect Transferee, CHK, any CHK Direct Transferee, any CHK Indirect Transferee or any of their respective affiliates or successors or any “group,” or any member of any such group, to which such persons are a party under Rule 13d-5 of the Exchange Act, or (b) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of any action taken solely by the Corporation, provided, further, that in the case of clause (b) such person shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through application of the definition of “owner” below but shall not include any other unissued stock of the Corporation that may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.

 

11.                                owner ,” including the terms “ own ” and “ owned ,” when used with respect to any stock, means a person that individually or with or through any of its affiliates or associates:

 

i.                                           beneficially owns such stock, directly or indirectly; or

 

ii.                                        has (a) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person’s affiliates or associates until such tendered stock is accepted for purchase or exchange; or (b) the right to vote such stock pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable

 

10



 

proxy or consent given in response to a proxy or consent solicitation made to ten or more persons; or

 

iii.                                     has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in clause (b) of subsection (ii) above), or disposing of such stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock.

 

12.                                person ” means any individual, corporation, partnership, unincorporated association or other entity.

 

13.                                stock ” means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.

 

14.                                voting stock ” means stock of any class or series entitled to vote generally in the election of directors.

 

ARTICLE XIII

 

Subject to the provisions of the Investors’ Rights Agreements, the Corporation reserves the right at any time from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and any other provisions authorized by the DGCL may be added or inserted, in the manner now or hereafter prescribed by law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to the right reserved in this Article XIII. Notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote and except to the extent the consent of the Nominating Stockholder is also required for such amendment, but in addition to any affirmative vote of the holders of any series of Preferred Stock required by law, by this Certificate of Incorporation or by any Preferred Stock Designation, the affirmative vote of the holders of a majority in voting power of the then-outstanding shares of stock of the Corporation entitled to vote thereon shall be required to amend, alter, change or repeal any provision of this Certificate of Incorporation, or to adopt any new provision of this Certificate of Incorporation; provided, however, that the affirmative vote of the holders of at least 66 2/3% in voting power of the then-outstanding voting stock of the Corporation entitled to vote thereon shall be required to amend, alter, change or repeal, or adopt any provision inconsistent with, any of Article IV, Article V, Article VII, Article VIII, Article IX, Article X, Article XI, Article XII, Article XIV, Article XV and this sentence of this Certificate of Incorporation, or in each case, the definition of any capitalized terms used therein or any successor provision (including, without limitation, any such article or section as renumbered as a result of any amendment, alteration, change, repeal or adoption of any other provision of this Certificate of Incorporation). Any amendment, repeal or modification of any of Article VII, Article VIII, Article XII and this sentence shall not adversely affect any right or protection of any person existing thereunder with respect to any act or omission occurring prior to such repeal or modification.

 

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ARTICLE XIV

 

Subject to the provisions of the Investors’ Rights Agreements, in furtherance and not in limitation of the powers conferred upon it by law, the Board is expressly authorized and empowered to adopt, amend and repeal the Bylaws by the affirmative vote of a majority of the total number of directors present at a regular or special meeting of the Board at which there is a quorum or by written consent. Notwithstanding any other provision of this Certificate of Incorporation or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any series of Preferred Stock required by law, by this Certificate of Incorporation or by any Preferred Stock Designation, the Bylaws may also be amended, altered or repealed and new Bylaws may be adopted by the affirmative vote of the holders of at least 66 2/3% of the then-outstanding voting power of the stock of the Corporation entitled to vote thereon except to the extent the consent of the Nominating Stockholder is also required for such amendment.

 

ARTICLE XV

 

Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for (A) any derivative action or proceeding brought on behalf of the Corporation, (B) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (C) any action asserting a claim arising pursuant to any provision of the DGCL, or this Certificate of Incorporation or the Bylaws (as either may be amended and/or restated from time to time) or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware, or (D) any action asserting a claim governed by the internal affairs doctrine.  Any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XV.

 

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IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation has been executed this 1 st  day of, February 2018.

 

 

FTS INTERNATIONAL, INC.

 

 

 

 

 

 

 

By:

/s/ Michael J. Doss

 

 

Name: Michael J. Doss

 

 

Title: Chief Executive Officer

 

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Exhibit 4.2

 

AMENDED AND RESTATED BYLAWS

 

OF

 

FTS INTERNATIONAL, INC.

 



 

Table of Contents

 

 

 

Page

 

 

 

 

ARTICLE I

 

STOCKHOLDERS

1

 

 

 

 

1.1

 

Place of Meetings

1

1.2

 

Annual Meeting

1

1.3

 

Special Meetings

1

1.4

 

Notice of Meetings

1

1.5

 

Voting List

2

1.6

 

Quorum

2

1.7

 

Adjournments

2

1.8

 

Proxies

3

1.9

 

Action at Meeting

3

1.10

 

Notice of Stockholder Business and Nominations

3

1.11

 

Conduct of Meetings

7

 

 

 

 

ARTICLE II

 

DIRECTORS

8

 

 

 

 

2.1

 

General Powers

8

2.2

 

Number, Election and Qualification

8

2.3

 

Chair of the Board; Vice Chair of the Board

8

2.4

 

Classes of Directors

9

2.5

 

Terms of Office

9

2.6

 

Quorum

9

2.7

 

Action at Meeting

9

2.8

 

Removal

9

2.9

 

Vacancies

10

2.10

 

Resignation

10

2.11

 

Regular Meetings

10

2.12

 

Special Meetings

10

2.13

 

Notice of Special Meetings

10

2.14

 

Meetings by Conference Communications Equipment

10

2.15

 

Action by Consent

10

2.16

 

Committees

11

2.17

 

Compensation of Directors

11

 

 

 

 

ARTICLE III

 

OFFICERS

11

 

 

 

 

3.1

 

Titles

11

3.2

 

Election

11

3.3

 

Qualification

12

 

i



 

Table of Contents

(continued)

 

 

 

 

Page

 

 

 

 

3.4

 

Tenure

12

3.5

 

Resignation and Removal

12

3.6

 

Vacancies

12

3.7

 

Chief Executive Officer; President

12

3.8

 

Vice Presidents

12

3.9

 

Secretary and Assistant Secretaries

12

3.10

 

Treasurer and Assistant Treasurers

13

3.11

 

Salaries

13

3.12

 

Delegation of Authority

13

 

 

 

 

ARTICLE IV

 

CAPITAL STOCK

13

 

 

 

 

4.1

 

Issuance of Stock

13

4.2

 

Uncertificated Shares; Stock Certificates

14

4.3

 

Transfers

14

4.4

 

Lost, Stolen or Destroyed Certificates

15

4.5

 

Record Date

15

4.6

 

Regulations

15

 

 

 

 

ARTICLE V

 

GENERAL PROVISIONS

16

 

 

 

 

5.1

 

Fiscal Year

16

5.2

 

Waiver of Notice

16

5.3

 

Voting of Securities

16

5.4

 

Evidence of Authority

16

5.5

 

Certificate of Incorporation

16

5.6

 

Severability

16

5.7

 

Pronouns

16

5.8

 

Electronic Transmission

16

 

 

 

 

ARTICLE VI

 

AMENDMENTS

17

 

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ARTICLE I

 

STOCKHOLDERS

 

1.1                                Place of Meetings .  All meetings of stockholders shall be held at such place, if any, as may be designated from time to time by the Board of Directors (the “ Board ”) of FTS International, Inc. (the “ Corporation ”), the Chief Executive Officer or the Chair of the Board or, if not so designated, at the principal office of the Corporation.  The Board may, in its sole discretion, determine that a meeting shall not be held at any place, but may instead be held solely by means of remote communication in accordance with Section 211(a) of the General Corporation Law of the State of Delaware (the “ DGCL ”).

 

1.2                                Annual Meeting .  The annual meeting of stockholders for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly be brought before the meeting shall be held on a date and at a time designated by the Board, the Chief Executive Officer or the Chair of the Board (which date shall not be a legal holiday in the place, if any, where the meeting is to be held).  The Board, the Chief Executive Officer or the Chair of the Board may postpone, reschedule or cancel any previously scheduled annual meeting of stockholders.

 

1.3                                Special Meetings .  Special meetings of stockholders for any purpose or purposes may be called at any time by (a) the Board (by resolution adopted by a majority of the total number of authorized directors), the Chief Executive Officer or the Chair of the Board or (b) the Secretary of the Corporation upon the written request of holders owning at least 25% of the issued and outstanding common stock of the Corporation, and may not be called by any other person or persons.  The Board, the Chief Executive Officer or the Chair of the Board may postpone, reschedule or cancel any previously scheduled special meeting of stockholders.  Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of meeting.

 

1.4                                Notice of Meetings .  Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, notice of each meeting of stockholders, whether annual or special, shall be given not less than ten nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting.  Without limiting the manner by which notice otherwise may be given to stockholders, any notice shall be effective if given by a form of electronic transmission consented to (in a manner consistent with the DGCL) by the stockholder to whom the notice is given.  The notices of all meetings shall state the place, if any, date and time of the meeting, the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting).  The notice of a special meeting shall state, in addition, the purpose or purposes for which the meeting is called.  If notice is given by mail, such notice shall be deemed given when deposited in the U.S. mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation.  If notice is given by electronic transmission, such notice shall be deemed given at the time specified in Section 232 of the DGCL.

 



 

1.5                                Voting List .  The Secretary shall prepare, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), showing the address of each stockholder and the number of shares registered in the name of each stockholder.  Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least ten days prior to the meeting: (a) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (b) during ordinary business hours, at the principal place of business of the Corporation.  If the meeting is to be held at a place, then the list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.  If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.  Except as otherwise provided by law, the list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.

 

1.6                                Quorum .  Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the holders of a majority in voting power of the shares of the capital stock of the Corporation issued and outstanding and entitled to vote at the meeting, present in person, present by means of remote communication in a manner, if any, authorized by the Board in its sole discretion, or represented by proxy, shall constitute a quorum for the transaction of business; provided, however, that where a separate vote by a class or classes or series of capital stock is required by law or the Certificate of Incorporation, the holders of a majority in voting power of the shares of such class or classes or series of the capital stock of the Corporation issued and outstanding and entitled to vote on such matter, present in person, present by means of remote communication in a manner, if any, authorized by the Board in its sole discretion, or represented by proxy, shall constitute a quorum entitled to take action with respect to such matter.  A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum.

 

1.7                                Adjournments .  Any meeting of stockholders, annual or special, may be adjourned from time to time to any other time and to any other place at which a meeting of stockholders may be held under these Bylaws by the chair of the meeting or, if directed to be voted on by the chair of the meeting, by the stockholders having a majority in voting power of the shares of stock of the Corporation present or represented at the meeting and entitled to vote thereon, although less than a quorum.  If a quorum is present at the original duly organized meeting of stockholders, it shall also be deemed present at an adjourned or recessed session of such meeting.  If the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.  If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record as of the record date so fixed for notice of such adjourned meeting. At the

 

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adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting.

 

1.8                                Proxies .  Each stockholder of record entitled to vote at a meeting of stockholders may vote in person (including by means of remote communications, if any, by which stockholders may be deemed to be present in person and vote at such meeting) or may authorize another person or persons to vote for such stockholder by a proxy executed or transmitted in a manner permitted by applicable law.  No such proxy shall be voted upon after three years from the date of its execution, unless the proxy expressly provides for a longer period.

 

1.9                                Action at Meeting .  When a quorum is present at any meeting, any matter other than the election of directors to be voted upon by the stockholders at such meeting shall be decided by the vote of the holders of shares of stock having a majority in voting power of the votes cast by the holders of all of the shares of stock present or represented at the meeting and voting affirmatively or negatively on such matter (or if there are two or more classes or series of stock entitled to vote as separate classes, then in the case of each such class or series, the holders of a majority in voting power of the shares of stock of that class or series present or represented at the meeting and voting affirmatively or negatively on such matter), except when a different vote is required by applicable law, regulation applicable to the Corporation or its securities, the rules or regulations of any stock exchange applicable to the Corporation, the Certificate of Incorporation or these Bylaws.  Voting at meetings of stockholders need not be by written ballot.  At all meetings of stockholders for the election of directors at which a quorum is present a plurality of the votes cast shall be sufficient to elect directors.

 

1.10                         Notice of Stockholder Business and Nominations .

 

(A)                                Annual Meetings of Stockholders .  (1) Nominations of persons for election to the Board and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders only (a) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (b) by or at the direction of the Board or any committee thereof or (c) by any stockholder of the Corporation who was a stockholder of record of the Corporation at the time the notice provided for in this Section 1.10 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 1.10.

 

(2)                                  For any nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 1.10, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and any such proposed business (other than the nominations of persons for election to the Board) must constitute a proper matter for stockholder action.  To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 90 th  day, nor earlier than the close of business on the 120 th  day, prior to the first anniversary of the preceding year’s annual meeting (provided, however, that (a) in the case of the annual meeting of stockholders of the Corporation to be held in 2018, or (b) in the event that the date of the annual meeting is more than 30 days before or more than 70 days after such anniversary date, notice by the stockholder must be so delivered not earlier than the close of business on the 120 th  day prior to such annual meeting and

 

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not later than the close of business on the later of the 90 th  day prior to such annual meeting or the tenth day following the day on which public announcement of the date of such meeting is first made by the Corporation).  In no event shall the public announcement of an adjournment or postponement of an annual meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.  Such stockholder’s notice shall include:

 

(a)                                  as to each person whom the stockholder proposes to nominate for election as a director (i) all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise required, in each case pursuant to and in accordance with Section 14(a) of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), and the rules and regulations promulgated thereunder; (ii) all information that would be required to be disclosed pursuant to Items 403 and 404 under Regulation S-K if the stockholder giving the notice or the beneficial owner on whose behalf the notice is made were the “registrant” for purposes of such rule and such person were a director or executive officer of the “registrant;” (iii)  a written questionnaire with respect to the identity, background and qualification of such person and the background of any other person or entity on whose behalf the nomination is being made (which questionnaire will be provided by the Secretary upon written request); (iv) all information with respect to such person that would be required to be set forth in a stockholder’s notice pursuant to Section 1.10(A)(2)(c) if such person were the stockholder giving the notice; and (v) such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected;

 

(b)                                  as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; and

 

(c)                                   as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation’s books, and of such beneficial owner, (ii) the class or series and number of shares of capital stock of the Corporation which are owned beneficially and of record by such stockholder and such beneficial owner, (iii) a description of any agreement, arrangement or understanding with respect to the nomination or proposal between or among such stockholder and/or such beneficial owner, any of their respective affiliates or associates, and any others acting in concert with any of the foregoing, including, in the case of a nomination, the nominee, (iv) a description of any agreement, arrangement or understanding (including any derivative or short positions, profit interests, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the stockholder’s notice by, or on behalf of, such stockholder and such beneficial owners, whether or not such instrument or right shall be subject to settlement in underlying shares of capital stock of the Corporation, the effect or intent of which is to mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such stockholder or such beneficial owner, with respect to securities of the Corporation, (v) a representation that the stockholder is a holder of record of

 

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stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination, (vi) a representation whether the stockholder or the beneficial owner, if any, intends or is part of a group which intends (1) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (2) otherwise to solicit proxies or votes from stockholders in support of such proposal or nomination, and (vii) any other information relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder.  The foregoing notice requirements of this paragraph (A) of this Section 1.10 shall be deemed satisfied by a stockholder with respect to business other than a nomination if the stockholder has notified the Corporation of his, her or its intention to present a proposal at an annual meeting in compliance with applicable rules and regulations promulgated under the Exchange Act and such stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting.  The Corporation may require any proposed nominee to furnish such other information as the Corporation may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation.

 

(3)                                  Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section 1.10 to the contrary, in the event that the number of directors to be elected to the Board at the annual meeting is increased effective after the time period for which nominations would otherwise be due under paragraph (A)(2) of this Section 1.10 and there is no public announcement by the Corporation naming the nominees for the additional directorships at least 100 days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 1.10 shall also be considered timely, but only with respect to nominees for the additional directorships, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which such public announcement is first made by the Corporation.

 

(B)                                Special Meetings of Stockholders .  Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting.  Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (1) by or at the direction of the Board or any committee thereof or (2) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time the notice provided for in this Section 1.10 is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and upon such election and who complies with the notice procedures set forth in this Section 1.10.  In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by paragraph (A)(2) of this Section 1.10 shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the 120 th  day prior to such special meeting and not later than the close of business on the later of the 90 th

 

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day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting.  In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described above.

 

(C)                                General .  (1) Except as otherwise expressly provided in any applicable rule or regulation promulgated under the Exchange Act, only such persons who are nominated in accordance with the procedures set forth in this Section 1.10 shall be eligible to be elected at an annual or special meeting of stockholders of the Corporation to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 1.10.  Except as otherwise provided by law, the chair of the meeting shall have the power and duty (a) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 1.10 (including whether the stockholder or beneficial owner, if any, on whose behalf the nomination or proposal is made, solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies or votes in support of such stockholder’s nominee or proposal in compliance with such stockholder’s representation as required by clause (A)(2)(c)(vi) of this Section 1.10) and (b) if any proposed nomination or business was not made or proposed in compliance with this Section 1.10, to declare that such nomination shall be disregarded or that such proposed business shall not be transacted.  Notwithstanding the foregoing provisions of this Section 1.10, unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation.  For purposes of this Section 1.10, to be considered a qualified representative of the stockholder, a person must be (a) if the stockholder is a corporation, any duly authorized officer of such corporation, (b) if the stockholder is a limited liability company, any duly authorized member, manager or officer of such limited liability company, (c) if the stockholder is a partnership, any general partner or person who functions as general partner for such partnership, (d) if the stockholder is a trust, the trustee of such trust, (e) if the stockholder is an entity other than the foregoing, the persons acting in such similar capacities as the foregoing with respect to such entity, or (f) authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.

 

(2)                                  For purposes of this Section 1.10, “public announcement” shall include disclosure in a press release reported by the Dow Jones News Service, Associated Press or other national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations promulgated thereunder.

 

(3)                                  Notwithstanding the foregoing provisions of this Section 1.10, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules

 

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and regulations promulgated thereunder with respect to the matters set forth in this Section 1.10; provided however, that any references in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 1.10 (including paragraphs (A)(1)(c) and (B) hereof), and compliance with paragraphs (A)(1)(c) and (B) of this Section 1.10 shall be the exclusive means for a stockholder to make nominations or submit other business (other than, as provided in the penultimate sentence of (A)(2), business other than nominations brought properly under and in compliance with Rule 14a-8 of the Exchange Act).  Nothing in this Section 1.10 shall be deemed to affect any rights (a) of stockholders to request inclusion of proposals or nominations in the Corporation’s proxy statement pursuant to applicable rules and regulations promulgated under the Exchange Act or (b) of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.

 

(D)                                Notwithstanding anything to the contrary contained herein, none of the requirements or obligations of Section 1.10 shall apply to any Investor (as such term is defined in the Investors’ Rights Agreement by and among the Corporation, Maju Investments (Mauritius) Pte Ltd and CHK Energy Holdings, Inc., dated February 1, 2018 (the “ Maju and CHK Investors’ Rights Agreement ”), or the Investors’ Rights Agreement by and among the Corporation, Senja Capital Ltd and Hampton Asset Holding Ltd., dated February 1, 2018 (the “ Senja Investors’ Rights Agreement ” and together with the Maju and CHK Investors’ Rights Agreement, the “ Investors’ Rights Agreements ”)) or its permitted successors and assigns.  This Section is subject in all respects to the Investors’ Rights Agreements.

 

1.11                         Conduct of Meetings .

 

(A)                                Meetings of stockholders shall be presided over by the Chair of the Board, if any, or in the Chair’s absence by the Vice Chair of the Board, if any, or in the Vice Chair’s absence by the Chief Executive Officer, or in the Chief Executive Officer’s absence, by the President, or in the President’s absence by a Vice President, or in the absence of all of the foregoing persons by a chair designated by the Board.  The Secretary shall act as secretary of the meeting, but in the Secretary’s absence the chair of the meeting may appoint any person to act as secretary of the meeting.

 

(B)                                The Board may adopt by resolution such rules, regulations and procedures for the conduct of any meeting of stockholders of the Corporation as it shall deem appropriate including, without limitation, such guidelines and procedures as it may deem appropriate regarding the participation by means of remote communication of stockholders and proxyholders not physically present at a meeting.  Except to the extent inconsistent with such rules, regulations and procedures as adopted by the Board, the chair of any meeting of stockholders shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chair, are appropriate for the proper conduct of the meeting.  Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chair of the meeting, may include, without limitation, the following: (1) the establishment of an agenda or order of business for the meeting; (2) rules and procedures for maintaining order at the meeting and the safety of those present; (3) limitations on attendance at or participation in the meeting to stockholders of

 

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record of the Corporation, their duly authorized and constituted proxies or such other persons as shall be determined; (4) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (5) limitations on the time allotted to questions or comments by participants. The chair of any meeting, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting and if the chair should so determine, the chair shall so declare to the meeting and any such matter or business not properly brought before the meeting shall not be transacted or considered.  Unless and to the extent determined by the Board or the chair of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

 

(C)                                The chair of the meeting shall announce at the meeting when the polls for each matter to be voted upon at the meeting will be opened and closed.  After the polls close, no ballots, proxies or votes or any revocations or changes thereto may be accepted.

 

(D)                                In advance of any meeting of stockholders, the Board, the Chair of the Board, the Chief Executive Officer or the President shall appoint one or more inspectors of election to act at the meeting or any adjournment thereof and make a written report thereof.  One or more other persons may be designated as alternate inspectors to replace any inspector who fails to act.  If no inspector or alternate is present, ready and willing to act at a meeting of stockholders, the chair of the meeting shall appoint one or more inspectors to act at the meeting.  Unless otherwise required by law, inspectors may be officers, employees or agents of the Corporation.  No person who is a candidate for an office at an election may serve as an inspector at such election.  Each inspector, before entering upon the discharge of such inspector’s duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability.  The inspector shall have the duties prescribed by law and, when the vote is completed, shall make a certificate of the result of the vote taken and of such other facts as may be required by law.  Every vote taken by ballots shall be counted by a duly appointed inspector or duly appointed inspectors.

 

ARTICLE II

 

DIRECTORS

 

2.1                                General Powers .  The business and affairs of the Corporation shall be managed by or under the direction of a Board, who may exercise all of the powers of the Corporation except as otherwise provided by law or the Certificate of Incorporation.

 

2.2                                Number, Election and Qualification .  The total number of directors constituting the Board shall be as fixed in, or in the manner provided by, the Certificate of Incorporation.  Election of directors need not be by written ballot.  Directors need not be stockholders of the Corporation.

 

2.3                                Chair of the Board; Vice Chair of the Board .  The Board may appoint from its members a Chair of the Board and a Vice Chair of the Board, neither of whom need be an employee or officer of the Corporation.  If the Board appoints a Chair of the Board, such Chair shall perform such duties and possess such powers as are assigned by the Board and, if the Chair

 

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of the Board is also designated as the Corporation’s Chief Executive Officer, shall have the powers and duties of the Chief Executive Officer prescribed in Section 3.7 of these Bylaws.  If the Board appoints a Vice Chair of the Board, such Vice Chair shall perform such duties and possess such powers as are assigned by the Board.  The Chair of the Board shall preside at all meetings of the Board at which he or she is present. If the Chair of the Board is not present at a meeting of the Board, the Vice Chair of the Board, if any, shall preside at such meeting, and, if the Vice Chair is not present at such meeting (or if the Board does not have a Vice Chair), the Chief Executive Officer shall preside at such meeting unless a majority of the directors present at such meeting shall elect one of their other members to preside.

 

2.4                                Classes of Directors . Subject to the rights of holders of any series of Preferred Stock to elect directors, the Board shall be and is divided into three classes, designated Class I, Class II and Class III.  Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board. If the number of such directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any such additional director of any class elected to fill a newly created directorship resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case shall a decrease in the number of directors remove or shorten the term of any incumbent director.

 

2.5                                Terms of Office .  Subject to the rights of holders of any series of Preferred Stock to elect directors, each director shall serve for a term ending on the date of the third annual meeting of stockholders following the annual meeting of stockholders at which such director was elected; provided that each director initially assigned to Class I shall serve for a term expiring at the Corporation’s first annual meeting of stockholders held after the effectiveness of the Certificate of Incorporation; each director initially assigned to Class II shall serve for a term expiring at the Corporation’s second annual meeting of stockholders held after the effectiveness of the Certificate of Incorporation; and each director initially assigned to Class III shall serve for a term expiring at the Corporation’s third annual meeting of stockholders held after the effectiveness of the Certificate of Incorporation; provided, further, that the term of each director shall continue until the election and qualification of his or her successor, subject to his or her earlier death, disability, disqualification, resignation or removal.

 

2.6                                Quorum .  A majority of the directors of the then-existing members Board shall constitute a quorum of the Board.  If at any meeting of the Board there shall be less than a quorum, a majority of the directors present may adjourn the meeting from time to time without further notice other than announcement at the meeting, until a quorum shall be present.

 

2.7                                Action at Meeting .  Every act or decision done or made by a majority of the directors present at a meeting duly held at which a quorum is present shall be regarded as the act of the Board, unless a greater number is required by law or by the Certificate of Incorporation.

 

2.8                                Removal .  Subject to the rights of holders of any series of Preferred Stock, directors of the Corporation may be removed only as expressly provided in the Certificate of Incorporation.

 

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2.9                                Vacancies .  Subject to the provisions of the Certificate of Incorporation and the rights of holders of any series of Preferred Stock, any newly created directorship that results from an increase in the number of directors or any vacancy on the Board that results from the death, disability, resignation, disqualification or removal of any director or from any other cause shall be filled solely by the affirmative vote of a majority of the directors then in office, even if less than a quorum, or by a sole remaining director and shall not be filled by the stockholders. Any director elected to fill a vacancy not resulting from an increase in the number of directors shall hold office for the remaining term of his or her predecessor.

 

2.10                         Resignation .  Any director may resign by delivering a resignation in writing or by electronic transmission to the Corporation at its principal office or to the Chair of the Board, the Chief Executive Officer, the President or the Secretary.  Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event.

 

2.11                         Regular Meetings .  Regular meetings of the Board may be held without notice at such time and place as shall be determined from time to time by the Board; provided that any director who is absent when such a determination is made shall be given notice of the determination.  A regular meeting of the Board may be held without notice immediately after and at the same place as the annual meeting of stockholders.

 

2.12                         Special Meetings .  Special meetings of the Board may be called by the Chair of the Board, the affirmative vote of a majority of the directors then in office, or by one director in the event that there is only a single director in office.

 

2.13                         Notice of Special Meetings .  Notice of the date, place and time of any special meeting of the Board shall be given to each director by the Secretary or by the person or persons calling the meeting.  Notice shall be duly given to each director (a) in person or by telephone at least 24 hours in advance of the meeting, (b) by sending written notice by reputable overnight courier, facsimile or other means of electronic transmission, or delivering written notice by hand, to such director’s last known business, home or means of electronic transmission address at least 24 hours in advance of the meeting, or (c) by sending written notice by first-class mail to such director’s last known business or home address at least 72 hours in advance of the meeting.  A notice or waiver of notice of a meeting of the Board need not specify the purposes of the meeting.

 

2.14                         Meetings by Conference Communications Equipment .  Directors may participate in meetings of the Board or any committee thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation by such means shall constitute presence in person at such meeting.

 

2.15                         Action by Consent .  Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent to the action in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee thereof.  Such filing shall be in paper

 

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form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

 

2.16                         Committees .  The Board may designate one or more committees, each committee to consist of one or more of the directors of the Corporation with such lawfully delegable powers and duties as the Board thereby confers, to serve at the pleasure of the Board.  The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee.  In the absence or disqualification of a member of a committee, the member or members of the committee present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member.  Any such committee, to the extent provided in the resolution of the Board and subject to the provisions of law, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers that may require it; but no committee shall have the power or authority in reference to the following matters: (a) approving or adopting, or recommending to the stockholders any action or matter (other than election or removal of directors) expressly required by the DGCL to be submitted to stockholders for approval or (b) adopting, amending or repealing any provision of these Bylaws.  Each such committee shall keep minutes and make such reports as the Board may from time to time request.  Except as the Board may otherwise determine, any committee may make rules for the conduct of its business, but unless otherwise provided by the directors or in such rules, its business shall be conducted as nearly as possible in the same manner as is provided in these Bylaws for the Board.  Except as otherwise provided in the Certificate of Incorporation, these Bylaws, or the resolution of the Board designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.

 

2.17                         Compensation of Directors .  Directors may be paid such compensation for their services and such reimbursement for expenses of attendance at meetings of the Board or any committee thereof as the Board may from time to time determine.  No such payment shall preclude any director from serving the Corporation or any of its parent or subsidiary entities in any other capacity and receiving compensation for such service.

 

ARTICLE III

 

OFFICERS

 

3.1                                Titles .  The officers of the Corporation may consist of a Chief Executive Officer, a President, a Chief Financial Officer, a Secretary and a Treasurer and such other officers with such other titles as the Board shall from time to time determine.  The Board may appoint such other officers, including one or more Vice Presidents and one or more Assistant Secretaries or Assistant Treasurers, as it may deem appropriate from time to time.

 

3.2                                Election .  The officers of the Corporation shall be elected annually by the Board.

 

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3.3                                Qualification .  No officer need be a stockholder.  Any two or more offices may be held by the same person.

 

3.4                                Tenure .  Except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws, each officer shall hold office until such officer’s successor is duly elected and qualified, unless a different term is specified in the resolution electing or appointing such officer, or until such officer’s earlier death, resignation, disqualification or removal.

 

3.5                                Resignation and Removal .  Any officer may resign by delivering a written resignation to the Corporation at its principal office or to the Board, the Chief Executive Officer, the President or the Secretary.  Such resignation shall be effective upon receipt unless it is specified to be effective at some later time or upon the happening of some later event.  Any officer may be removed at any time, with or without cause, by the affirmative vote of a majority of the directors then in office at any meeting of the Board at which a quorum is present.  Except as the Board may otherwise determine, no officer who resigns or is removed shall have any right to any compensation as an officer for any period following such officer’s resignation or removal, or any right to damages on account of such removal, whether such officer’s compensation be by the month or by the year or otherwise, unless such compensation is expressly provided for in a duly authorized written agreement with the Corporation.

 

3.6                                Vacancies .  The Board may fill any vacancy occurring in any office for any reason and may, in its discretion, leave unfilled, for such period as it may determine, any offices.  Each such successor shall hold office for the unexpired term of such officer’s predecessor and until a successor is duly elected and qualified, or until such officer’s earlier death, resignation, disqualification or removal.

 

3.7                                Chief Executive Officer; President .  Unless the Board has designated another person as the Corporation’s President, the Chief Executive Officer shall be the President of the Corporation.  The Chief Executive Officer shall have general charge and supervision of the business of the Corporation subject to the direction of the Board, and shall perform all duties and have all powers that are commonly incident to the office of chief executive or that are delegated to such officer by the Board.  The President shall perform such other duties and shall have such other powers as the Board or the Chief Executive Officer (if the Chief Executive Officer is not the President) may from time to time prescribe.  In the event of the absence, inability or refusal to act of the Chief Executive Officer or the President (if the Chief Executive Officer is not the President), the Vice President (or if there shall be more than one, the Vice Presidents in the order determined by the Board) shall perform the duties of the Chief Executive Officer and when so performing such duties shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer.

 

3.8                                Vice Presidents .  Each Vice President shall perform such duties and possess such powers as the Board or the Chief Executive Officer may from time to time prescribe.  The Board may assign to any Vice President the title of Executive Vice President, Senior Vice President, Chief or any other similar title selected by the Board.

 

3.9                                Secretary and Assistant Secretaries .  The Secretary shall perform such duties and shall have such powers as the Board or the Chief Executive Officer may from time to time

 

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prescribe.  In addition, the Secretary shall perform such duties and have such powers as are incident to the office of the Secretary, including without limitation the duty and power to give notices of all meetings of stockholders and special meetings of the Board, to attend all meetings of stockholders and the Board and keep a record of the proceedings, to maintain a stock ledger and prepare lists of stockholders and their addresses as required, to be custodian of corporate records and the corporate seal and to affix and attest to the same on documents.

 

Any Assistant Secretary, or any other similar title selected by the Board, shall perform such duties and possess such powers as the Board, the Chief Executive Officer or the Secretary may from time to time prescribe.  In the event of the absence, inability or refusal to act of the Secretary, the Assistant Secretary (or if there shall be more than one, the Assistant Secretaries in the order determined by the Board) shall perform the duties and exercise the powers of the Secretary.

 

The chair of any meeting of the Board or of stockholders may designate a temporary secretary to keep a record of any meeting.

 

3.10                         Treasurer and Assistant Treasurers .  The Treasurer shall perform such duties and shall have such powers as may from time to time be assigned by the Board or the Chief Executive Officer.  In addition, the Treasurer shall perform such duties and have such powers as are incident to the office of treasurer, including without limitation the duty and power to keep and be responsible for all funds and securities of the Corporation, to deposit funds of the Corporation in depositories selected in accordance with these Bylaws, to disburse such funds as ordered by the Board, to make proper accounts of such funds, and to render as required by the Board statements of all such transactions and of the financial condition of the Corporation.

 

The Assistant Treasurers, or any other similar title selected by the Board, shall perform such duties and possess such powers as the Board, the Chief Executive Officer or the Treasurer may from time to time prescribe.  In the event of the absence, inability or refusal to act of the Treasurer, the Assistant Treasurer (or if there shall be more than one, the Assistant Treasurers in the order determined by the Board) shall perform the duties and exercise the powers of the Treasurer.

 

3.11                         Salaries .  Officers (as defined under Section 16(a) of the Securities Exchange Act of 1934) of the Corporation shall be entitled to such salaries, compensation or reimbursement as shall be fixed or allowed from time to time by the Board or by a committee of the Board.  The Chief Executive Officer of the Corporation shall have the authority to fix the salaries, compensation or reimbursements of all other officers of the Corporation.

 

3.12                         Delegation of Authority .  The Board may from time to time delegate the powers or duties of any officer to any other officer or agent, notwithstanding any provision hereof.

 

ARTICLE IV

 

CAPITAL STOCK

 

4.1                                Issuance of Stock .  Subject to the provisions of the Certificate of Incorporation, the whole or any part of any unissued balance of the authorized capital stock of the Corporation

 

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or the whole or any part of any shares of the authorized capital stock of the Corporation held in the Corporation’s treasury may be issued, sold, transferred or otherwise disposed of by vote of the Board in such manner, for such lawful consideration and on such terms as the Board may determine.

 

4.2                                Uncertificated Shares; Stock Certificates .  Except as otherwise provided in a resolution approved by the Board, all shares of capital stock of the Corporation issued after the date hereof shall be uncertificated.  In the event the Board elects to provide in a resolution that certificates shall be issued to represent some or all shares of any or all classes or series of capital stock of the Corporation, every holder of such shares shall be entitled to have a certificate, in such form as may be prescribed by law and by the Board, representing the number of shares held by such holder registered in certificate form.  Each such certificate shall be signed in a manner that complies with Section 158 of the DGCL.

 

Each certificate for shares of stock that are subject to any restriction on transfer pursuant to the Certificate of Incorporation, these Bylaws, applicable securities laws or any agreement among any number of stockholders or among such holders and the Corporation shall have conspicuously noted on the face or back of the certificate either the full text of the restriction or a statement of the existence of such restriction.

 

If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of each certificate representing shares of such class or series of stock, provided that in lieu of the foregoing requirements there may be set forth on the face or back of each certificate representing shares of such class or series of stock a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

 

Within a reasonable time after the issuance or transfer of uncertificated shares, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to Sections 151, 156, 202(a) or 218(a) of the DGCL or, with respect to Section 151 of DGCL, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.

 

4.3                                Transfers .  Shares of stock of the Corporation shall be transferable in the manner prescribed by law, the Certificate of Incorporation and in these Bylaws.  Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation or by transfer agents designated to transfer shares of stock of the Corporation.  Subject to applicable law, shares of stock represented by certificates shall be transferred only on the books of the Corporation by the surrender to the Corporation or its transfer agent of the certificate representing such shares properly endorsed or accompanied by a written assignment or power of attorney properly executed, and with such proof of authority or the authenticity of signature as the Corporation or its transfer agent may reasonably require.  Except as may be otherwise required by law, by the

 

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Certificate of Incorporation or by these Bylaws, the Corporation shall be entitled to treat the record holder of stock as shown on its books as the owner of such stock for all purposes, including the payment of dividends and the right to vote with respect to such stock, regardless of any transfer, pledge or other disposition of such stock until the shares have been transferred on the books of the Corporation in accordance with the requirements of these Bylaws.

 

4.4                                Lost, Stolen or Destroyed Certificates .  The Corporation may issue a new certificate or uncertificated shares in place of any previously issued certificate alleged to have been lost, stolen or destroyed, upon such terms and conditions as the Board may prescribe, including the presentation of reasonable evidence of such loss, theft or destruction and the giving of such indemnity and posting of such bond as the Board may require for the protection of the Corporation or any transfer agent or registrar.

 

4.5                                Record Date .  In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, not less than ten nor more than 60 days before the date of such meeting.  If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination.  If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.  A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.

 

In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which shall not be more than 60 days prior to such action.  If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

 

4.6                                Regulations .  The issuance and registration of shares of stock of the Corporation shall be governed by such other regulations as the Board may establish.

 

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ARTICLE V

 

GENERAL PROVISIONS

 

5.1                                Fiscal Year .  Except as from time to time otherwise designated by the Board, the fiscal year of the Corporation shall begin on the first day of January of each year and end on the last day of December in each year.

 

5.2                                Waiver of Notice .  Whenever notice is required to be given by law, by the Certificate of Incorporation or by these Bylaws, a written waiver signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled to notice, whether before, at or after the time of the event for which notice is to be given, shall be deemed equivalent to notice required to be given to such person.  Neither the business nor the purpose of any meeting need be specified in any such waiver.  Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.

 

5.3                                Voting of Securities .  Except as the Board may otherwise designate, the Chief Executive Officer, the President, the Chief Financial Officer or the Treasurer may waive notice, vote, consent, or appoint any person or persons to waive notice, vote or consent, on behalf of the Corporation, and act as, or appoint any person or persons to act as, proxy or attorney-in-fact for this Corporation (with or without power of substitution), with respect to the securities of any other entity which may be held by this Corporation.

 

5.4                                Evidence of Authority .  A certificate by the Secretary, or an Assistant Secretary, or a temporary secretary, as to any action taken by the stockholders, directors, a committee or any officer or representative of the Corporation shall as to all persons who rely on the certificate in good faith be conclusive evidence of such action.

 

5.5                                Certificate of Incorporation .  All references in these Bylaws to the Certificate of Incorporation shall be deemed to refer to the Certificate of Incorporation of the Corporation, as amended and/or restated and in effect from time to time.

 

5.6                                Severability .  Any determination that any provision of these Bylaws is for any reason inapplicable, illegal or ineffective shall not affect or invalidate any other provision of these Bylaws.

 

5.7                                Pronouns .  All pronouns used in these Bylaws shall be deemed to refer to the masculine, feminine or neuter, singular or plural, as the identity of the person or persons may require.

 

5.8                                Electronic Transmission .  For purposes of these Bylaws, “electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.

 

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ARTICLE VI

 

AMENDMENTS

 

These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the Board or by the stockholders as expressly provided in the Certificate of Incorporation.

 

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Exhibit 4.3

 

REGISTRATION RIGHTS AGREEMENT

 

This Registration Rights Agreement (this “ Agreement ”) is made and entered into as of February 1, 2018, by and among FTS International, Inc., a Delaware corporation (the “ Company ”) , Maju Investments (Mauritius) Pte Ltd ( “ Maju ”), CHK Energy Holdings, Inc. (“ Chesapeake ”), Senja Capital Ltd (“ Senja ”), and Hampton Asset Holding Ltd. (“ Hampton ” and together with Maju, Chesapeake and Senja, the “ Initial Holders ”).

 

In consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party hereto, the parties hereto agree as follows:

 

Section 1.  Definitions .  As used in this Agreement, the following terms have the following meanings:

 

Affiliate ” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act, as in effect on the date hereof.  For the avoidance of doubt, neither the Company nor any Person controlled by the Company shall be deemed to be an Affiliate of any Holder or of any Affiliate of any Holder.

 

Agreement ” has the meaning set forth in the preamble.

 

Alternative Transaction ” means the sale of Registrable Securities to one or more purchasers in a registered transaction without a prior marketing process by means of (a) a bought deal, (b) a block trade, (c) a direct sale or (d) any other transaction that is registered pursuant to a Shelf Registration Statement that is not a firm commitment underwritten offering.

 

Automatic Shelf Registration Statement ” means an “automatic shelf registration statement” as defined in Rule 405.

 

Business Day ” means any day that is not a Saturday, a Sunday or other day on which banks are required or authorized by law to be closed in New York, New York.

 

Certificate of Incorporation ” means the Amended and Restated Certificate of Incorporation of the Company as amended from time to time.

 

Chesapeake ”  has the meaning set forth in the preamble.

 

Commission ” means the Securities and Exchange Commission or any other federal agency then administering the Securities Act or Exchange Act.

 

Common Stock Equivalents ” means all options, warrants and other securities that at such time are convertible into, or exchangeable or exercisable for, shares of Company Common Stock (including, without limitation, any note or debt security convertible into or exchangeable for shares of Company Common Stock).

 

Company ” has the meaning set forth in the preamble.

 



 

Company Common Stock ” means the shares of common stock, par value $0.01 per share, of the Company.

 

Demand Eligible Holder ” has the meaning set forth in Section 2(a)(i) .

 

Demand Eligible Holder Notice ” has the meaning set forth in Section 2(a)(i) .

 

Demand Eligible Holder Request ” has the meaning set forth in Section 2(a)(i) .

 

Demand Notice ” has the meaning set forth in Section 2(a)(i) .

 

Demand Registration ” has the meaning set forth in Section 2(a)(i) .

 

Demand Registration Statement ” has the meaning set forth in Section 2(a)(i) .

 

Effectiveness Period ” has the meaning set forth in Section 2(a)(iii) .

 

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

Family Member ” shall mean, with respect to any natural Person, such Person’s parents, spouse (but not including a former spouse or a spouse from whom such Person is legally separated) and descendants (whether or not adopted) and any trust, family limited partnership or limited liability company that is and remains solely for the benefit of such Person’s spouse (but not including a former spouse or a spouse from whom such Person is legally separated) and/or descendants.

 

FINRA ” means the Financial Industry Regulatory Authority.

 

Holder ” means (i) the Initial Holders or (ii) any Permitted Transferee. A Person shall cease to be a Holder hereunder at such time as it ceases to hold any Registrable Securities.

 

Holders of a Majority of Included Registrable Securities ” means Holders of a majority of the Registrable Securities included in the Registration Statement.

 

Indemnified Persons ” has the meaning set forth in Section 6(a) .

 

Initial Holders ” has the meaning set forth in the preamble.

 

Initiating Holder ” has the meaning set forth in Section 2(a)(i) .

 

IPO ” means the underwritten initial public offering of Common Stock by the Company pursuant to the Registration Statement on Form S-1 (Registration No. 333-215998).

 

Issuer Free Writing Prospectus ” means an issuer free writing prospectus, as defined in Rule 433, relating to an offer of the Registrable Securities.

 

Lock-Up Party ” has the meaning set forth in Section 4(u) .

 

Losses ” has the meaning set forth in Section 6(a) .

 

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Maju ”  has the meaning set forth in the preamble.

 

Maximum Offering Size ” has the meaning set forth in Section 2(a)(iv) .

 

Other Registrable Securities ” means (a) Company Common Stock (including any Company Common Stock issued upon the conversion or exercise of any Common Stock Equivalents), (b) any securities issued or issuable directly or indirectly with respect to, on account of or in exchange for Company Common Stock, whether by stock split, stock dividend, recapitalization, merger, consolidation or other reorganization, charter amendment or otherwise and (c) any options, warrants or other rights to acquire, and any securities received as a dividend or distribution in respect of, any of the securities described in clauses (a) and (b) above, in each case held by any Person who has rights to participate in any offering of securities by the Company pursuant to a registration rights agreement or other similar arrangement with the Company relating to the Company Common Stock or Common Stock Equivalents (other than this Agreement).

 

Permitted Transferee ” means a transferee to whom a Holder transfers shares of Company Common Stock and related rights under this Agreement in accordance with Section 7 .

 

Person ” means any individual, corporation, limited liability company, private limited company, public limited company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, governmental entity or agency or other entity of any kind or nature.

 

Piggyback Eligible Holders ” has the meaning set forth in Section 2(b)(i) .

 

Piggyback Notice ” has the meaning set forth in Section 2(b)(i) .

 

Piggyback Registration ” has the meaning set forth in Section 2(b)(i) .

 

Piggyback Registration Statement ” has the meaning set forth in Section 2(b)(i) .

 

Piggyback Request ” has the meaning set forth in Section 2(b)(i) .

 

Price Range ” has the meaning set forth in Section 2(a)(v) .

 

Proceeding ” means any action, claim, suit, proceeding or investigation (including a preliminary investigation or partial proceeding, such as a deposition) pending or known to the Company to be threatened.

 

Prospectus ” means the prospectus included in a Registration Statement (including a prospectus that includes any information previously omitted from a prospectus filed as part of an effective Registration Statement in reliance upon Rule 430A promulgated under the Securities Act), all amendments and supplements to the Prospectus, including post-effective amendments, all material incorporated by reference or deemed to be incorporated by reference in such Prospectus and any Issuer Free Writing Prospectus.

 

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Public Offering means any sale of shares of Company Common Stock to the public pursuant to a public offering registered (other than a registration effected solely to implement an employee benefit plan or a transaction to which Rule 145 is applicable) under the Securities Act.

 

Registrable Securities ” means (a) any shares of Company Common Stock (including those held as a result of, or issuable upon, the conversion or exercise of Common Stock Equivalents), (b) any securities issued or issuable, directly or indirectly, with respect to, on account of or in exchange for Company Common Stock, whether by stock split, stock dividend, recapitalization, merger, consolidation or other reorganization, charter amendment or otherwise and (c) any options, warrants or other rights to acquire, and any securities received as a dividend or distribution in respect of, any of the securities described in clauses (a) and (b) above, in each case that are held by the Holders and their Affiliates , all of which securities are subject to the rights provided herein until such rights terminate pursuant to the provisions of this Agreement.  As to any particular Registrable Securities, such securities shall not be Registrable Securities when (i) a Registration Statement registering such Registrable Securities under the Securities Act has been declared effective and such Registrable Securities have been sold, transferred or otherwise disposed of by the Holder thereof pursuant to such effective Registration Statement, (ii) such Registrable Securities are sold, transferred or otherwise disposed of pursuant to Rule 144, (iii) such securities cease to be outstanding, or (iv) the entire amount of such Holder’s Registrable Securities, together with the Registrable Securities of its Affiliates, constitute less than 1% of the then-outstanding shares of Company Common Stock.  For the avoidance of doubt, once a Holder and its Affiliates cease to hold Registrable Securities because their holdings fall below the 1% threshold referenced above, such Holder and its Affiliates will not thereafter hold Registrable Securities as a result of their holdings thereafter exceeding such 1% threshold.

 

Registration Expenses ” has the meaning set forth in Section 5 .

 

Registration Statement ” means a registration statement of the Company filed with or to be filed with the Commission under the Securities Act and other applicable law, including an Automatic Shelf Registration Statement, and including any Prospectus, amendments and supplements to each such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.

 

Related Party ” has the meaning set forth in Section 8(p) .

 

Rule 144 ” means Rule 144 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

 

Rule 145 ” means Rule 145 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

 

Rule 158 ” means Rule 158 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

 

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Rule 405 ” means Rule 405 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

 

Rule 424 ” means Rule 424 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

 

Rule 433 ” means Rule 433 promulgated by the Commission pursuant to the Securities Act, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

 

Seasoned Issuer ” means an issuer eligible to use a registration statement on Form S-3 under the Securities Act and who is not an “ineligible issuer” as defined in Rule 405.

 

Securities Act ” means the Securities Act of 1933, as amended.

 

Selling Expenses ” means all underwriting fees, discounts, selling commissions and stock transfer taxes applicable to the sale of Registrable Securities and related legal and other fees of a Holder not included within the definition of Registration Expenses.

 

Shelf Registration Statement ” means a shelf registration statement under Rule 415 of the Securities Act.

 

Skipped Block Sale ” has the meaning set forth in Section 4(u) .

 

Stand-Off Agreement ” has the meaning set forth in Section 4(u) .

 

Stand-Off Period ” has the meaning set forth in Section 4(u).

 

Subsidiary ” means, when used with respect to any Person, any corporation or other entity, whether incorporated or unincorporated, (a) of which such Person or any other Subsidiary of such Person is a general partner (excluding partnerships, the general partnership interests of which held by such Person or any Subsidiary of such Person do not have a majority of the voting interests in or otherwise control such partnership) or (b) at least a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions with respect to such corporation or other entity is directly or indirectly owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries.

 

Suspension Period ” has the meaning set forth in Section 2(d) .

 

Trading Market ” means the principal national securities exchange in the United States on which Registrable Securities are listed.

 

underwritten offering ” includes, without limitation, any offering effected as a “bought deal” or through an auction to dealers.

 

WKSI ” means a “well known seasoned issuer” as defined under Rule 405 and which (i) is a “well-known seasoned issuer” under paragraph (1)(i)(A) of such definition or (ii) is

 

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a “well-known seasoned issuer” under paragraph (1)(i)(B) of such definition and is also a Seasoned Issuer.

 

Section 2.  Registration .

 

(a)           Demand Registration .

 

(i)            Subject to the terms and conditions of this Agreement, including Section 2(a)(ii)  below, at any time and from time to time after the expiration of the lock-up period applicable to the IPO, each Holder (any such requesting Holder, the “ Initiating Holder ”) shall have the right to require the Company to file one or more registration statements under the Securities Act covering all or any part of their Registrable Securities upon written notice to the Company (a “ Demand Notice ”).  The registration so requested is referred to herein as a “ Demand Registration .”  The Company shall promptly (but in any event, not later than ten Business Days following the Company’s receipt of a Demand Notice) give written notice (“ Demand Eligible Holder Notice ”) of the receipt of such Demand Notice to all Holders (other than the Initiating Holder) that, to its knowledge, hold Registrable Securities (each a “ Demand Eligible Holder ”).  The Company shall promptly (but in any event, not later than 60 days following the Company’s receipt of a Demand Notice) file the appropriate Registration Statement (the “ Demand Registration Statement ”) and use its commercially reasonable efforts to effect, at the earliest practicable date, the registration under the Securities Act and under applicable state securities laws of (A) the Registrable Securities which the Company has been so requested to register by the Initiating Holder in the Demand Notice, (B) all other Registrable Securities of the same class or series as those requested to be registered in the Demand Notice which the Company has been requested to register by the Demand Eligible Holders by written request (the “ Demand Eligible Holder Request ”) given to the Company within ten Business Days after the giving of the Demand Eligible Holder Notice, and (C) any Registrable Securities to be offered and sold by the Company, in each case subject to Section 2(a)(ii) , all to the extent required to permit the disposition (in accordance with the intended methods of disposition) of the Registrable Securities to be so registered. The Company shall effect any requested Demand Registration using a registration statement on Form S-3 whenever the Company is a Seasoned Issuer or a WKSI, and shall use an Automatic Shelf Registration Statement if it is a WKSI.

 

(ii)           Limitations on Demand Registration .  The Demand Registration rights granted in Section 2(a)(i)  are subject to the following limitations: (A) the Company shall not be required to effect more than four Demand Registrations by each of Maju and Chesapeake and four Demand Registration collectively by Senja and Hampton (including in each case, such Party’s respective Affiliates) pursuant to Section 2(a)(i) ; and (B) each registration in respect of a Demand Notice must include, in the aggregate (based solely on the Company Common Stock requested to be included in such registration by the Initiating Holder(s) making the Demand Notice), shares of Company Common Stock having an aggregate market value of at least $50 million.

 

(iii)          Effectiveness of Demand Registration Statement .  The Company shall use its commercially reasonable efforts to have the Demand Registration Statement declared effective by the Commission and keep the Demand Registration Statement continuously effective under the Securities Act for the period of time necessary for the underwriters or

 

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Holders to sell all the Registrable Securities covered by such Demand Registration Statement or such shorter period which will terminate when all Registrable Securities covered by such Demand Registration Statement have been sold pursuant thereto (including, if necessary, by filing with the Commission a post-effective amendment or a supplement to the Demand Registration Statement or the related Prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Demand Registration Statement, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Demand Registration Statement or by the Securities Act, any state securities or “blue sky” laws, or any other rules and regulations thereunder) (the “ Effectiveness Period ”). A Demand Registration requested pursuant to this Section 2(a)  shall not be deemed to have been effected (A) if the Registration Statement is withdrawn without becoming effective, (B) if the Registration Statement does not remain effective in compliance with the provisions of the Securities Act and the laws of any state or other jurisdiction applicable to the disposition of the Registrable Securities covered by such Registration Statement for the Effectiveness Period, (C) if, after it has become effective, such Registration Statement is subject to any stop order, injunction or other order or requirement of the Commission or other governmental or regulatory agency or court for any reason other than a violation of applicable law solely by any selling Holder and has not thereafter become effective, (D) in the event of an underwritten offering, if the conditions to closing specified in the underwriting agreement entered into in connection with such registration are not satisfied or waived, or (E) if the Company does not include in the applicable Registration Statement any Registrable Securities held by a Holder that are required by the terms hereof to be included in such Registration Statement.

 

(iv)          Priority of Registration .  Notwithstanding any other provision of this Section 2(a) , if (A) the Registrable Securities covered by a Demand Registration are intended to be distributed by means of an underwritten offering and (B) the managing underwriters advise the Company that, in their reasonable view, the number of Registrable Securities proposed to be included in such offering (including Registrable Securities requested by Holders to be included in such offering and any securities that the Company proposes to be included in such offering) exceeds the number of Registrable Securities which can be sold in an orderly manner in such offering within a price range acceptable to the Initiating Holders (the “ Maximum Offering Size ”), then the Company shall so advise the Holders with Registrable Securities proposed to be included in such underwritten offering, and shall include in such offering the number of Registrable Securities which can be so sold in the following order of priority, up to the Maximum Offering Size:  (1)  first , the Registrable Securities requested to be included in such underwritten offering not to exceed the Maximum Offering Size by the Initiating Holder, (2)  second , and only if all the securities referred to in clause (1) have been included in the registration, to any other Demand Eligible Holders, allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Demand Eligible Holders on the basis of the number of Registrable Securities requested to be included therein by each such Holder and (3)  third , and only if all the securities referred to in clauses (1) and (2) have been included in such registration, any securities proposed to be registered by the Company.

 

(v)           Underwritten Demand Registration .  The determination of whether any offering of Registrable Securities pursuant to a Demand Registration will be an underwritten offering shall be made in the sole discretion of the Initiating Holders included in such

 

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underwritten offering.  The Initiating Holders included in such underwritten offering shall also have the right to (A) determine the plan of distribution, including the price at which the Registrable Securities are to be sold and the underwriting commissions, discounts and fees, and (B) select the investment banker(s) and manager(s) to administer the offering (which shall consist of one (1) or more reputable nationally recognized investment banks, subject to the Company’s approval (which shall not be unreasonably withheld, conditioned or delayed)) and one firm of legal counsel to represent all of the Holders (along with any reasonably necessary local counsel), in connection with such Demand Registration.  Promptly (and in any event within one Business Day) following receipt of notification to the Company from the managing underwriter(s) of a range of prices at which such Registrable Securities are likely to be sold (the “ Price Range ”), the Company shall so advise each Holder requesting participation in such offering of such Price Range.

 

(vi)          Withdrawal of Registrable Securities . In the event of an underwritten offering of Registrable Securities pursuant to a Demand Registration, any such Holder whose Registrable Securities were to be included in any such underwritten offering may elect to withdraw any or all of its Registrable Securities therefrom by written notice to the Company and the managing underwriter(s) delivered on or prior to the earlier of (A) one Business Day following being advised of the Price Range, (B) execution of the underwriting agreement with respect to such underwritten offering, or (C) execution of the custody agreement with respect to such underwritten offering. If a Holder elects to withdraw any or all of its Registrable Securities based on the procedure set forth above prior to the effectiveness of the Demand Registration Statement, the Registrable Securities withdrawn from such underwritten offering shall be excluded and withdrawn from the registration.  Any Holder whose Registrable Securities were to be included in any such registration pursuant to Section 2(a) , other than pursuant to an underwritten offering, may elect to withdraw any or all of its Registrable Securities therefrom, without prejudice to the rights of any such Holder to include Registrable Securities in any future registration (or registrations), by written notice to the Company delivered on or prior to the effective date of the relevant Demand Registration Statement.

 

(b)           Piggyback Registration .

 

(i)            Registration Statement on behalf of the Company .  If at any time the Company proposes to register any of its equity securities or Common Stock Equivalents for its own account or for the account of any other stockholder, other than pursuant to a Demand Registration under Section 2(a) , under the Securities Act (excluding an offering relating solely to an employee benefit plan, an offering relating to a transaction on Form S-4, a rights offering or an offering on any form of Registration Statement that does not permit secondary sales) (a “ Piggyback Registration Statement ”), the Company shall give prompt written notice (the “ Piggyback Notice ”) to all Holders that, to its knowledge, hold Registrable Securities (collectively, the “ Piggyback Eligible Holders ”) of the Company’s intention to file a Piggyback Registration Statement reasonably in advance of (and in any event at least ten Business Days before) the anticipated filing date of such Piggyback Registration Statement. The Piggyback Notice shall offer the Piggyback Eligible Holders the opportunity to include for registration in such Piggyback Registration Statement the number of Registrable Securities of the same class and series as those proposed to be registered as they may request, subject to Section 2(b)(ii)  (a “ Piggyback Registration ”).  Subject to Section 2(b)(ii) , the Company shall use its commercially

 

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reasonable efforts to include in each such Piggyback Registration such Registrable Securities for which the Company has received written requests ( each, a “ Piggyback Request ”) from Piggyback Eligible Holders within five Business Days after giving the Piggyback Notice.  If a Piggyback Eligible Holder decides not to include all of its Registrable Securities in any Piggyback Registration Statement thereafter filed by the Company, such Piggyback Eligible Holder shall nevertheless continue to have the right to include any Registrable Securities in any subsequent Piggyback Registration Statements or Registration Statements as may be filed by the Company with respect to offerings of Registrable Securities, all upon the terms and conditions set forth herein.  The Company shall use its commercially reasonable efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register pursuant to the Piggyback Requests, to the extent required to permit the disposition of the Registrable Securities so requested to be registered.

 

(ii)           Priority of Registration .  If the Piggyback Registration under which the Company gives notice pursuant to Section 2(b)(i)  is an underwritten offering, and the managing underwriter or managing underwriters of such offering advise the Company and the Piggyback Eligible Holders that, in their reasonable view, the amount of securities requested to be included in such registration (including Registrable Securities requested by the Piggyback Eligible Holders to be included in such offering and any securities that the Company or any other Person proposes to be included that are not Registrable Securities) exceeds the Maximum Offering Size (which, for the purposes of a Piggyback Registration shall be within a price range acceptable to the Company), then the Company shall so advise all Piggyback Eligible Holders with Registrable Securities proposed to be included in such Piggyback Registration, and shall include in such offering the number which can be so sold in the following order of priority, up to the Maximum Offering Size: (A)  first , the securities that the Company proposes to sell up to the Maximum Offering Size, (B)  second , the Registrable Securities requested to be included in such Piggyback Registration, allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the Piggyback Eligible Holders on the basis of the number of Registrable Securities requested to be included therein by each Piggyback Eligible Holder and (C)  third , Other Registrable Securities requested to be included in such Piggyback Registration, allocated, if necessary for the offering not to exceed the Maximum Offering Size, pro rata among the holders thereof on the basis of the number of securities requested to be included therein by each such holder.  All Piggyback Eligible Holders requesting to be included in the Piggyback Registration must sell their Registrable Securities to the underwriters selected as provided in Section 2(b)(iv)  on the same terms and conditions as apply to the Company.  Promptly (and in any event within one Business Day) following receipt of notification by the Company from the managing underwriter of the Price Range, the Company shall so advise each Piggyback Eligible Holder requesting registration in such offering of such Price Range.  If any Piggyback Eligible Holder disapproves of the terms of any such underwritten offering (including the Price Range), such Piggyback Eligible Holder may elect to withdraw any or all of its Registrable Securities therefrom by written notice to the Company and the managing underwriter(s) delivered prior to the earlier of (A) one Business Day following being advised of the Price Range, (B) execution of the underwriting agreement with respect to such underwritten offering, or (C) execution of the custody agreement with respect to such underwritten offering. If a Piggyback Eligible Holder elects to withdraw any or all of its Registrable Securities based on the procedure set forth above prior to the effectiveness of the Piggyback Registration Statement, the Registrable Securities withdrawn from such underwritten offering shall be excluded and withdrawn from the

 

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registration.  For any Piggyback Eligible Holder that is a partnership, limited liability company, corporation or other entity, the partners, members, stockholders, Subsidiaries, parents and Affiliates of such Piggyback Eligible Holder, or the estates and Family Members of any such partners/members and retired partners/members and any trusts for the benefit of any of the foregoing Persons, shall be deemed to be a single “Piggyback Eligible Holder,” and any pro rata reduction with respect to such “Piggyback Eligible Holder” shall be based upon the aggregate amount of securities carrying registration rights owned by all entities and individuals included in such “Piggyback Eligible Holder,” as defined in this sentence.

 

(iii)          Withdrawal from Registration .  The Company shall have the right to terminate or withdraw any registration initiated by it under this Section 2(b)  prior to the effective date of such Registration Statement, whether or not any Piggyback Eligible Holder has elected to include Registrable Securities in such Registration Statement, without prejudice, however, to the right of the Holders immediately to request that such registration be effected as a registration under Section 2(a)  to the extent permitted thereunder and subject to the terms set forth therein.  The Registration Expenses of such withdrawn registration shall be borne by the Company in accordance with Section 5 hereof.

 

(iv)          Selection of Bankers and Counsel .  If a Piggyback Registration pursuant to this Section 2(b)  involves an underwritten offering, the Company shall have the right, in consultation with the Holders of a Majority of Included Registrable Securities included in such underwritten offering, to (A) determine the plan of distribution, including the price at which the Registrable Securities are to be sold and the underwriting commissions, discounts and fees and (B) select the investment banker or bankers and managers to administer the offering, including the lead managing underwriter or underwriters.

 

(v)           Effect of Piggyback Registration .  No registration effected under this Section 2(b)  shall relieve the Company of its obligations to effect any registration of the offer and sale of Registrable Securities upon request under Section 2(a)  hereof and no registration effected pursuant to this Section 2(b)  shall be deemed to have been effected pursuant to Section 2(a)  hereof.

 

(c)           Notice Requirements .  Any Demand Notice, Demand Eligible Holder Request or Piggyback Request shall (i) specify the maximum number and class or series of Registrable Securities intended to be offered and sold by the Holder making the request, (ii) express such Holder’s bona fide intent to offer up to such maximum number of Registrable Securities for distribution, (iii) describe the nature or method of the proposed offer and sale of Registrable Securities (to the extent applicable), and (iv) contain the undertaking of such Holder to provide all such information and materials and take all action as may reasonably be required in order to permit the Company to comply with all applicable requirements in connection with the registration of such Registrable Securities.

 

(d)           Suspension Period .  Notwithstanding any other provision of this Section 2 , the Company shall have the right but not the obligation to defer the filing of (but not the preparation of), or suspend the use by the Holders of, any Registration Statement or Prospectus for a period of up to 60 days if continued use of the Registration Statement or Prospectus would require the Company to make a public disclosure of material nonpublic information that, in its good faith

 

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judgment, after consultation with independent outside counsel to the Company, would be required to be made in any Registration Statement filed with the SEC by the Company so that such Registration Statement would not be materially misleading and would not be required to be made at such time but for the filing of such Registration Statement, but which information the Company has a bona fide business purpose for not disclosing publicly; provided that this exception shall continue to apply only (i) during the time that such material nonpublic information has not been disclosed and remains material; or (ii) if the Company is pursuing a primary underwritten offering of Company Common Stock pursuant to a registration statement; provided that the Holders shall have Piggyback Registration rights with respect to such primary underwritten offering in accordance with and subject to the restrictions set forth in Section 2(b) (any such period, a “ Suspension Period ”); provided , however , that in such event, the Initiating Holder will be entitled to withdraw any request for a Demand Registration and, if such request is withdrawn, such Demand Registration will not count as a Demand Registration and the Company will pay all Registration Expenses in connection with such registration; and provided   further , that in no event shall the Company declare a Suspension Period more than twice in any 12-month period or for more than an aggregate of 90 days in any 12-month period. The Company shall give prompt written notice to the Holders of its declaration of a Suspension Period and of the expiration of the relevant Suspension Period.  If the filing of any Demand Registration is suspended pursuant to this Section 2(d) , once the Suspension Period ends, the Initiating Holder or any other Holder may request a new Demand Registration.

 

(e)           Required Information .  The Company may require each Holder of Registrable Securities as to which any Registration Statement is being filed or sale is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder and its ownership of Registrable Securities as the Company may from time to time reasonably request in writing ( provided that such information shall be used only in connection with such registration) and the Company may exclude from such registration or sale the Registrable Securities of any such Holder who fails to furnish such information within a reasonable time after receiving such request. Each Holder agrees to furnish such information to the Company and to cooperate with the Company as reasonably necessary to enable the Company to comply with the provisions of this Agreement.

 

(f)            Other Registration Rights Agreements .  The Company has not entered into and, unless agreed in writing by each Holder on or after the date of this Agreement, will not enter into, any agreement that (i) is inconsistent with the rights granted to the Holders with respect to Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof in any material respect or (ii) other than as set forth in this Agreement, would allow any holder of Company Common Stock to include Company Common Stock in any Registration Statement filed by the Company on a basis that is more favorable in any material respect to the rights granted to the Holders hereunder.

 

(g)           Cessation of Registration Rights .  All registration rights granted under this Section 2 shall continue to be applicable with respect to any Holder until such Holder no longer holds any Registrable Securities.

 

Section 3.  Alternative Transactions .  Notwithstanding anything to the contrary contained herein other than as provided in this Section 3 , (A) no Holder shall be entitled to any piggyback

 

11



 

right or to participate as a Demand Eligible Holder under Section 2 in the event of an Alternative Transaction (including Alternative Transactions under a Shelf Registration Statement or an Automatic Shelf Registration Statement, or in connection with the registration of Registrable Securities under an Automatic Shelf Registration Statement for purposes of effectuating an Alternative Transaction), (B) no Holder, other than Maju, Chesapeake, Senja or Hampton and their respective Affiliates, shall be permitted to request or participate in an underwritten offering that is an Alternative Transaction and (C) an Initiating Holder effecting an underwritten offering that is an Alternative Transaction shall provide prompt notice (but in no event later than three Business Days prior to such Alternative Transaction) to the Company and any other Initial Holders setting forth the proposed timeline for such offering to permit participation by such other Initial Holders in such offering, (which, for the avoidance of doubt shall be subject to the priority provisions of Section 2(a)(iv)) and such other Initial Holder shall be entitled to participate in such offering so long as the participation of such other Initial Holder does not delay the proposed timeline of such Alternative Transaction specified in the notice. With respect to Maju or Chesapeake only, any registration with respect to an Alternative Transaction shall not constitute a Demand Registration for purposes of determining the number of Demand Registrations effected by the Company under Section 2(a)(ii)).

 

Section 4.  Registration Procedures .  The procedures to be followed by the Company and each participating Holder to register the sale of Registrable Securities pursuant to a Registration Statement in accordance with this Agreement, and the respective rights and obligations of the Company and such Holders with respect to the preparation, filing and effectiveness of such Registration Statement, are as follows:

 

(a)           The Company will (i) prepare and file a Registration Statement or a prospectus supplement, as applicable, with the Commission (within the time period specified in Section 2(a) , in the case of a Demand Registration) which Registration Statement (A) subject to the requirements of Section 2(a)(i) , shall be on a form selected by the Company for which the Company qualifies, (B) shall be available for the sale or exchange of the Registrable Securities in accordance with the intended method or methods of distribution, and (C) shall comply as to form in all material respects with the requirements of the applicable form and include and/or incorporate by reference all financial statements required by the Commission to be filed therewith, (ii) use its commercially reasonable efforts to cause such Registration Statement to become effective and remain effective for the periods provided under Section 2(a)  in the case of a Demand Registration Statement, (iii) use its commercially reasonable efforts to prevent the occurrence of any event that would cause a Registration Statement to contain a material misstatement or omission or to be not effective and usable for resale of the Registrable Securities registered pursuant thereto (during the period that such Registration Statement is required to be effective as provided under Section 2(a) ), and (iv) cause each Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of such Registration Statement, amendment or supplement (x) to comply in all material respects with any requirements of the Securities Act and the rules and regulations of the Commission and (y) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Company will, (1) at least ten Business Days prior to the anticipated filing of a Registration Statement or any related Prospectus or any amendment or supplement thereto (including any documents incorporated by reference therein), or before using any Issuer Free Writing Prospectus, furnish to

 

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such Holders, the Holders’ counsel and the managing underwriter or underwriters of an underwritten offering of Registrable Securities, if applicable, copies of all such documents proposed to be filed, (2) use its commercially reasonable efforts to address in each such document prior to being so filed with the Commission such comments as such Holder, its counsel or underwriter reasonably shall propose within three Business Days of receipt of such copies by the Holders and (3) not file any Registration Statement or any related Prospectus or any amendment or supplement thereto containing information regarding a participating Holder to which a participating Holder objects.

 

(b)           The Company will as promptly as reasonably practicable (i) prepare and file with the Commission such amendments, including post-effective amendments, and supplements to each Registration Statement and the Prospectus used in connection therewith as (A) may be reasonably requested by any Holder of Registrable Securities covered by such Registration Statement necessary to permit such Holder to sell in accordance with its intended method of distribution or (B) may be necessary under applicable law to keep such Registration Statement continuously effective with respect to the disposition of all Registrable Securities covered thereby for the periods provided under Section 2(a)  in accordance with the intended method of distribution and, subject to the limitations contained in this Agreement, prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities held by the Holders, (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplement, and as so supplemented or amended, to be filed pursuant to Rule 424, (iii) respond to any comments received from the Commission with respect to each Registration Statement or Prospectus or any amendment thereto, and (iv) as promptly as reasonably practicable, provide such Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement or Prospectus other than any comments that the Company determines in good faith would result in the disclosure to such Holders of material non-public information concerning the Company that is not already in the possession of such Holder.

 

(c)           The Company will comply in all material respects with the provisions of the Securities Act and the Exchange Act (including Regulation M under the Exchange Act) with respect to each Registration Statement and the disposition of all Registrable Securities covered by each Registration Statement.

 

(d)           The Company will notify such Holders that, to its knowledge, hold Registrable Securities and the managing underwriter or underwriters of an underwritten offering of Registrable Securities, if applicable, as promptly as reasonably practicable: (i)(A) when a Registration Statement, any pre-effective amendment, any Prospectus or any prospectus supplement or post-effective amendment to a Registration Statement or any free writing prospectus is proposed to be filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments on such Registration Statement (in which case the Company shall provide true and complete copies thereof and all written responses thereto to each Holder, its counsel and each underwriter, if applicable, other than information which the Company determines in good faith would constitute material non-public information that is not already in the possession of such Holder); and (C) with respect to each Registration Statement or any post-effective amendment thereto, when the same has been declared effective; (ii) of any request by the Commission or any

 

13



 

other federal or state governmental or regulatory authority for amendments or supplements to a Registration Statement or Prospectus or for additional information (whether before or after the effective date of the Registration Statement) or any other correspondence with the Commission or any such authority relating to, or which may affect, the Registration Statement; (iii) of the issuance by the Commission or any other governmental or regulatory authority of any stop order, injunction or other order or requirement suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; (v) if the representations and warranties of the Company in any applicable underwriting agreement or similar agreement cease to be true and correct in all material respects as of the date such representations and warranties are made; or (vi) of the occurrence of any event that makes any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or if, as a result of such event or the passage of time, such Registration Statement, Prospectus or other documents requires revisions so that, in the case of such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, or when any Issuer Free Writing Prospectus includes information that may conflict with the information contained in the Registration Statement or Prospectus, or if, for any other reason, it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act, which shall correct such misstatement or omission or effect such compliance.

 

(e)           The Company will use its best reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the effectiveness of a Registration Statement or the use of any Prospectus or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.

 

(f)            During the Effectiveness Period, the Company will furnish to each selling Holder and the managing underwriter or underwriters of an underwritten offering of Registrable Securities, if applicable, upon their request, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such selling Holder or underwriter (including those incorporated by reference) promptly after the filing of such documents with the Commission.

 

(g)           The Company will promptly deliver to each selling Holder and the managing underwriter or underwriters of an underwritten offering of Registrable Securities, if applicable, without charge, as many copies of each Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such selling Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities by such selling Holder or underwriter.  The Company consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders and any applicable underwriter

 

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in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.

 

(h)           The Company will use its commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by a Registration Statement, no later than the time such Registration Statement is declared effective by the Commission, under all applicable securities laws (including the “blue sky” laws) of such jurisdictions each underwriter, if any, or any selling Holder shall reasonably request; (ii) keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective under the terms of this Agreement and (iii) do any and all other acts and things which may be reasonably necessary or advisable to enable such underwriter, if any, and each selling Holder to consummate the disposition in each such jurisdiction of the Registrable Securities covered by such Registration Statement; provided , however , that the Company will not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith) in any such jurisdiction.

 

(i)            The Company will cooperate with the Holders and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates or book-entry statements representing Registrable Securities to be sold, which certificates or book-entry statements shall be free, to the extent permitted by the underwriting agreement or purchase agreement, if applicable, and under law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders or managing underwriter, as applicable, may reasonably request and instruct any transfer agent and registrar of Registrable Securities to release any stop transfer orders in respect thereof.  At the request of any Holder or the managing underwriter, if any, the Company will deliver or cause to be delivered an opinion of counsel, certification or instructions to the transfer agent in order to allow the Registrable Securities to be sold from time to time free of all restrictive legends.

 

(j)            Upon the occurrence of any event contemplated by Sections 2(d) or 4(d)(vi) , as promptly as reasonably practicable, the Company will prepare a supplement or amendment, including a post-effective amendment, if required by applicable law, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or to the applicable Issuer Free Writing Prospectus, and file any other required document so that, as thereafter delivered, no Registration Statement nor any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in light of the circumstances under which they were made) not misleading and no Issuer Free Writing Prospectus will include information that conflicts with information contained in the Registration Statement or Prospectus, such that each selling Holder can resume disposition of such Registrable Securities covered by such Registration Statement or Prospectus.

 

(k)           Selling Holders may distribute the Registrable Securities by means of an underwritten offering; provided that (i) such Holders provide to the Company a Demand Notice of their intention to distribute Registrable Securities by means of an underwritten offering,

 

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(ii) the right of any Holder to include such Holder’s Registrable Securities in such registration shall be conditioned upon such Holder’s participation in such underwriting and the inclusion of such Holder’s Registrable Securities in the underwriting to the extent provided herein, (iii) each Holder participating in such underwritten offering agrees to enter into customary agreements, including an underwriting agreement in customary form, and sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the Holders entitled to select the managing underwriter or managing underwriters hereunder ( provided that any such Holder shall not be required to make any representations or warranties to or agreements with the Company or the underwriters other than representations, warranties, agreements and indemnities regarding such Holder, such Holder’s title to the Registrable Securities, such Holder’s intended method of distribution, the accuracy of information concerning such Holder as provided by or on behalf of such Holder, and any other representations required to be made by the Holder under applicable law, and the aggregate amount of the liability of such Holder in connection with such offering shall not exceed such Holder’s net proceeds from the disposition of such Holder’s Registrable Securities in such offering) and (iv) each Holder participating in such underwritten offering completes and executes all questionnaires, powers of attorney, custody agreements and other documents reasonably required under the terms of such underwriting arrangements. The Company hereby agrees with each Holder that, in connection with any underwritten offering in accordance with the terms hereof, it will negotiate in good faith and execute all indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements, and will procure auditor “comfort” letters addressed to the underwriters in the offering from the Company’s independent certified public accountants or independent auditors (and, if necessary, any other independent certified public accountants or independent auditors of any Subsidiary of the Company or any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement) in customary form and covering such matters of the type customarily covered by comfort letters as the underwriters reasonably request, dated the date of execution of the underwriting agreement and brought down to the closing under the underwriting agreement.

 

(l)            The Company will obtain for delivery to the underwriter or underwriters of an underwritten offering of Registrable Securities an opinion or opinions from counsel for the Company (including any local counsel reasonably requested by the underwriters) dated the most recent effective date of the Registration Statement or, in the event of an underwritten offering, the date of the closing under the underwriting agreement, in customary form, scope and substance, covering the matters customarily covered in opinions requested in sales of securities or underwritten offerings, which opinions shall be reasonably satisfactory to such underwriters and their counsel.

 

(m)          For a reasonable period prior to the filing of any Registration Statement and throughout the Effectiveness Period, the Company will make available upon reasonable notice at the Company’s principal place of business or such other reasonable place for inspection by a representative appointed by the Holders of a Majority of Included Registrable Securities covered by the applicable Registration Statement, by any managing underwriter or managing underwriters selected in accordance with this Agreement and by any attorney, accountant or other agent retained by such Holders or underwriter, such financial and other information and books and records of the Company, and cause the officers, employees, counsel and independent

 

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certified public accountants of the Company to respond to such inquiries, as shall be reasonably necessary (and in the case of counsel, not violate an attorney-client privilege in such counsel’s reasonable belief) to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act.

 

(n)           The Company will (i) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the applicable Registration Statement from and after a date not later than the effective date of such Registration Statement and provide and enter into any reasonable agreements with a custodian for the Registrable Securities and (ii) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities.

 

(o)           The Company will cooperate with each Holder of Registrable Securities and each underwriter or agent participating in the disposition of Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA and in performance of any due diligence investigations by any underwriter.

 

(p)           The Company will use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission, the Trading Market, FINRA and any state securities authority, and make available to each Holder, as soon as reasonably practicable after the effective date of the Registration Statement, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158.

 

(q)           The Company will use its commercially reasonable efforts to ensure that any Issuer Free Writing Prospectus utilized in connection with any Prospectus complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related Prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

 

(r)            In connection with any registration of Registrable Securities pursuant to this Agreement, the Company will take all commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the disposition of Registrable Securities by such Holders, including using commercially reasonable efforts to cause appropriate officers and employees to be available, on a customary basis and upon reasonable advance notice, to meet with prospective investors in presentations, meetings and road shows; provided , however that the Company shall not be required to participate in any marketing effort that is longer than three business days or requires face to face meetings with investors more than once every 90 days and no more than three times in a 12-month period.

 

(s)            The Company shall promptly cause all Registrable Securities being sold to be qualified for inclusion in or listed on any securities exchange on which shares of Company Common Stock are then so qualified or listed if so requested by the Holders, or if so requested by the managing underwriter(s) of an underwritten offering, if any.

 

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(t)            The Company shall, if such registration for an underwritten offering is pursuant to a Registration Statement on Form S-3 or any similar short-form registration, include in such Registration Statement such additional information for marketing purposes as the managing underwriter(s) reasonably request(s).

 

(u)           In connection with an underwritten offering of Common Stock, if requested by the managing underwriter for such offering, each Holder (the “ Lock-Up Party ”), hereby agrees to enter into a lock-up agreement (a “ Stand-Off Agreement ”) containing customary restrictions on transfers of equity securities of the Company held by such Holder (other than those included in such offering) for a period specified by the managing underwriter beginning ten days prior to the execution of the related underwriting agreement and not to exceed 60 days in connection with the first underwritten offering that is an Alternative Transaction, 45 days in connection with any subsequent underwritten offering that is an Alternative Transaction and 90 days following the offering date of the offering of equity securities of the Company in the case of all other offerings (the “ Stand-Off Period ”); provided that all sellers in the offering (including, if applicable, the Company) and all executive officers and directors of the Company shall enter into agreements containing substantially similar or no more favorable terms and only if such Persons remain subject thereto (and are not released from such agreement) for such Stand-Off Period. Any discretionary waiver or termination of the Stand-Off Period applicable to any such Person by the Company or the managing underwriter shall apply to all similarly situated persons subject to the Stand-Off Agreement on a pro rata basis.  Each Initial Holder agrees to execute and deliver such other agreements as may be reasonably requested by the Company or the underwriter that are consistent with the foregoing or which are necessary to give further effect thereto.  The obligations described in this Section shall not apply to a registration relating solely to employee benefit plans on Form S-1 or Form S-8 or similar forms that may be promulgated in the future, or a registration relating solely to a transaction on Form S-4 or similar forms that may be promulgated in the future. The Company may impose stop-transfer instructions with respect to Common Stock (or other securities) subject to the foregoing restriction until the end of the Stand-Off Period. Notwithstanding anything to the contrary set forth in this Agreement, (i) nothing herein shall prevent any Initial Holder from participating in such offering, if otherwise permitted pursuant to this Agreement and (ii) no Initial Holder shall be required to be a Lock-Up Party in connection with an underwritten offering that is an Alternative Transaction in which such Initial Holder does not participate (a “ Skipped Block Sale ”) if, during the preceding twelve month period, such Initial Holder has been a Lock-Up Party in connection with Skipped Block Sales either (a) at least twice or (b) for at least an aggregate of 90 days.

 

(v)           The Company shall use its commercially reasonable efforts to cooperate in a timely manner with any reasonable and customary request of the Holders in respect of any Alternative Transaction, including entering into customary agreements with respect to such Alternative Transactions (and providing customary representations, warranties, covenants and indemnities in such agreements) as well as providing other reasonable assistance in respect of such Alternative Transactions of the type applicable to a Public Offering subject to this Section 4 , to the extent customary for such transactions.

 

Section 5.  Registration Expenses.   The Company shall bear all reasonable Registration Expenses incident to the parties’ performance of or compliance with their respective obligations under this Agreement or otherwise in connection with any Demand Registration or Piggyback

 

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Registration (excluding any Selling Expenses), whether or not any Registrable Securities are sold pursuant to a Registration Statement.

 

Registration Expenses ” shall include, without limitation, (i) all registration, qualification and filing fees and expenses (including fees and expenses (A) of the Commission or FINRA, (B) incurred in connection with the listing of the Registrable Securities on the Trading Market, and (C) in compliance with applicable state securities or “blue sky” laws (including reasonable fees and disbursements of counsel for the underwriters in connection with blue sky qualifications of the Registrable Securities)); (ii) printing expenses (including expenses of printing certificates for the Company’s shares and of printing prospectuses); (iii) analyst or investor presentation or road show expenses of the Company and the underwriters, if any; (iv) messenger, telephone and delivery expenses; (v) reasonable fees and disbursements of counsel (including any local counsel), auditors and accountants for the Company (including the expenses incurred in connection with “comfort letters” required by or incident to such performance and compliance); (vi) the reasonable fees and disbursements of underwriters to the extent customarily paid by issuers or sellers of securities (including, if applicable, the fees and expenses of any “qualified independent underwriter” (and its counsel) that is required to be retained in accordance with the rules and regulations of FINRA and the other reasonable fees and disbursements of underwriters (including reasonable fees and disbursements of counsel for the underwriters) in connection with any FINRA qualification; (vii) fees and expenses of any special experts retained by the Company; (viii) Securities Act liability insurance, if the Company so desires such insurance; (ix) reasonable fees and disbursements of one counsel (along with any reasonably necessary local counsel) representing all Holders mutually agreed by Holders of a Majority of Included Registrable Securities participating in the related registration; and (x) fees and expenses payable in connection with any ratings of the Registrable Securities, including expenses relating to any presentations to rating agencies.  In addition, the Company shall be responsible for all of its expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including expenses payable to third parties and including all salaries and expenses of the Company’s officers and employees performing legal or accounting duties), the expense of any annual audit and any underwriting fees, discounts, selling commissions and stock transfer taxes and related legal and other fees applicable to securities sold by the Company and in respect of which proceeds are received by the Company. Each Holder shall pay any Selling Expenses applicable to the sale or disposition of such Holder’s Registrable Securities pursuant to any Demand Registration Statement or Piggyback Registration Statement, or pursuant to any Automatic Shelf Registration Statement or Shelf Registration Statement under which such selling Holder’s Registrable Securities were sold, in proportion to the amount of such selling Holder’s shares of Registrable Securities sold in any offering under such Demand Registration Statement, Piggyback Registration Statement, Automatic Shelf Registration Statement or Shelf Registration Statement.

 

Section 6.  Indemnification .

 

(a)           If requested by a participating Holder, the Company shall indemnify and hold harmless each underwriter, if any, engaged in connection with any registration referred to in Section 2 and provide representations, covenants, opinions and other assurances to such underwriter in form and substance reasonably satisfactory to such underwriter and the Company, all to be set forth in an underwriting agreement in customary form.  Further, the Company shall

 

19


 

indemnify and hold harmless each Holder, its stockholders, equityholders, general partners, limited partners, managers, members, and Affiliates and each of their respective officers and directors and any Person who controls any such Holder (within the meaning of the Securities Act) and any employee, attorney or Representative thereof (collectively, “ Indemnified Persons ”), to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, joint or several, costs (including reasonable costs of preparation and reasonable attorneys’, accountants’ and experts’ fees) and expenses, judgments, fines, penalties, interest, settlements or other amounts arising from any and all proceedings, whether civil, criminal, administrative or investigative, in which any Indemnified Person may be involved, or is threatened to be involved, as a party or otherwise, under the Securities Act or otherwise (collectively, “ Losses ”), as incurred, arising out of, based upon, resulting from or relating to (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement under which any Registrable Securities were registered, Prospectus (including in any preliminary prospectus (if used prior to the effective date of such Registration Statement)), or in any summary or final prospectus or free writing prospectus or in any amendment or supplement thereto or in any documents incorporated by reference in any of the foregoing or (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements made therein not misleading, or (iii) any violation or alleged violation by the Company or any of its Subsidiaries of any federal, state or common law rule or regulation relating to action or inaction in connection with any Company provided information in such registration, disclosure document or related document or report, and the Company will reimburse such Indemnified Person for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such Proceeding; provided , however , that the Company shall not be liable to any Indemnified Person to the extent that any such Losses arise out of, are based upon or results from an untrue or alleged untrue statement or omission or alleged omission made in such Registration Statement, such preliminary, summary or final prospectus or free writing prospectus or such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Indemnified Person specifically for use in the preparation thereof.

 

(b)           In connection with any Registration Statement filed by the Company pursuant to Section 2 hereof in which a Holder has registered for sale its Registrable Securities, each such selling Holder agrees (severally and not jointly) to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its directors and officers, Affiliates, employees, agents and each Person who controls the Company (within the meaning of the Securities Act or the Exchange Act) from and against any Losses resulting from (i) any untrue statement of a material fact in any Registration Statement under which such Registrable Securities were registered or sold under the Securities Act (including any final, preliminary or summary Prospectus contained therein or any amendment thereof or supplement thereto or any documents incorporated by reference therein) or (ii) any omission to state therein a material fact required to be stated therein or necessary to make the statements therein  not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission is contained in any information furnished in writing by or on behalf of such selling Holder to the Company specifically for inclusion in such Registration Statement or Prospectus, has not been corrected in a subsequent writing prior to the sale of the Registrable Securities to the Company or the Indemnified Person asserting the claim and the Losses resulted from the Company’s reliance on such written information from the selling Holder. In no event shall the liability of any selling Holder hereunder be greater in

 

20



 

amount than the dollar amount of the net proceeds received by such Holder under the sale of Registrable Securities giving rise to such indemnification obligation less any amounts paid by such Holder in connection with such sale.

 

(c)           Any indemnified person shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification ( provided that any delay or failure to so notify the indemnifying party shall not relieve the indemnifying party of its obligations hereunder except to the extent, if at all, that it is actually and materially prejudiced by reason of such delay or failure) and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided , however , that any indemnified person shall have the right to select and employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such indemnified person unless (A) the indemnifying party has agreed in writing to pay such fees or expenses, (B) the indemnifying party shall have failed to assume the defense of such claim within a reasonable time after receipt of notice of such claim from the indemnified person and employ counsel reasonably satisfactory to such indemnified person, (C) the indemnified party has reasonably concluded (based upon advice of its counsel) that there may be legal defenses available to it or other indemnified persons that are different from or in addition to those available to the indemnifying party, or (D) in the reasonable judgment of any such indemnified person (based upon advice of its counsel) a conflict of interest may exist between such indemnified person and the indemnifying party with respect to such claims (in which case, if the indemnified person notifies the indemnifying party in writing that such indemnified person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claim on behalf of such indemnified person).  No action may be settled without the consent of the indemnifying party, provided that the consent of the indemnified party shall not be required if (A) such settlement includes an unconditional release of such indemnified party in form and substance satisfactory to such indemnified party from all liability on the claims that are the subject matter of such settlement; (B) such settlement provides for the payment by the indemnifying party of money as the sole relief for such action and (C) such settlement does not include any statement or any admission of fault, culpability or a failure to act by or on behalf of any indemnified party.  It is understood that the indemnifying party or parties shall not, except as specifically set forth in this Section 6(c) , in connection with any Proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees, disbursements or other charges of more than one separate firm admitted to practice in such jurisdiction at any one time.

 

(d)           If for any reason the foregoing indemnity is unavailable, unenforceable or is insufficient to hold harmless an indemnified party under Sections 6(a) or (b) , then each applicable indemnifying party shall contribute to the amount paid or payable to such indemnified party as a result of any Losses in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and the indemnified party, on the other hand, with respect to such Loss. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the indemnifying party or the indemnified party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable law, then each

 

21



 

indemnifying party shall contribute to the amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative faults but also the relative benefits of the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if any contribution pursuant to this Section 6(d)  were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the preceding sentences of this Section 6(d) . The amount paid or payable in respect of any Losses shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such Losses. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. Notwithstanding anything in this Section 6(d)  to the contrary, no indemnifying party (other than the Company) shall be required pursuant to this Section 6(d)  to contribute any amount greater than the amount of the net proceeds received by such indemnifying party from the sale of Registrable Securities pursuant to the registration statement giving rise to such Losses, less the amount of any indemnification payment made by such indemnifying party pursuant to Section 6(b) . In addition, no Holder or any Affiliate thereof shall be required to pay any amount under this Section 6(d)  unless such Person or entity would have been required to pay an amount pursuant to Section 6(b)  if it had been applicable in accordance with its terms.

 

(e)           The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

 

Section 7.  Other Agreements .

 

(a)           Transfer of Rights .

 

(i)            Each Holder acknowledges and agrees that it may not transfer any of its registration rights under this Agreement except (A) to its Affiliates, (B) to any Person to whom the Holder transfers the lesser of (1) all of its shares of Registrable Securities or (2) 10% of the then outstanding shares of Company Common Stock or (C) with the prior written consent of the Company, and provided that, in each case, the requirements of Section 7(a)(ii)  are complied with.

 

(ii)           In the case of a transfer of shares of Company Common Stock pursuant to Section 7(a) , the registration rights of such Holder with respect to the transferred shares of Company Common Stock will be transferred to such transferee effective upon receipt by the Company of (A) written notice from such Holder stating the name and address of such transferee and identifying the number of shares of Company Common Stock with respect to which rights under this Agreement are being transferred and the nature of the rights so transferred, and (B) a written agreement from such transferee to be bound by the terms of this Agreement, substantially in the form of the Joinder Agreement attached hereto as Exhibit A . Following any such transfer, the Company will notify the other Holders as to who the transferees are and the nature of the rights so transferred.

 

22



 

(iii)          In the event the Company engages in a merger or consolidation in which the Company Common Stock is converted into securities of another company, appropriate arrangements will be made so that the registration rights provided under this Agreement continue to be provided to Holders by the issuer of such securities, unless Holders then holding 66 2/3% of the Registrable Securities otherwise agree. To the extent such new issuer, or any company acquired by the Company in a merger or consolidation, was bound by registration rights obligations that would conflict with the provisions of this Agreement, the Company will, unless Holders then holding 66 2/3% of the Registrable Securities otherwise agree, use its best efforts to modify any such “inherited” registration rights obligations so as not to interfere in any material respects with the rights provided under this Agreement.

 

(b)           Facilitation of Sales Pursuant to Rule 144 .  The Company shall use its commercially reasonable efforts to timely file the reports required to be filed by it under the Exchange Act or the Securities Act and the rules adopted by the Commission thereunder (including the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144), and shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable the Holders to sell Registrable Securities without registration under the Securities Act within the limitations of the exemption provided by Rule 144. Upon the written request of any Holder in connection with that Holder’s sale pursuant to Rule 144, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements.

 

Section 8.  Miscellaneous .

 

(a)           Remedies .  In the event of a breach by any party hereto of any of its obligations under this Agreement, the non-breaching parties, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement.  Each party agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and further agrees that, in the event of any action for specific performance in respect of such breach, it shall have waived hereby the defense that a remedy at law would be adequate and shall have waived hereby any requirement for the posting of a bond.

 

(b)           Discontinued Disposition .  Each Holder agrees by its acquisition of Registrable Securities or execution of this Agreement and acquiring the rights and obligations hereunder, that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in clauses (ii) through (iv) and (vi) of Section 4(d)  or the occurrence of a Suspension Period, such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemental Prospectus or amended Registration Statement or until it is advised in writing by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.  The Company may provide appropriate stop orders to enforce the provisions of this Section 8(b) .  In the event the Company shall give any such notice, the period during which the applicable Registration Statement is required to be maintained effective shall be extended by the number of days during the period from and

 

23



 

including the date of the giving of such notice to and including the date when each seller of Registrable Securities covered by such Registration Statement either receives the copies of the supplemented or amended Prospectus or is advised in writing by the Company that the use of the Prospectus may be resumed.

 

(c)           Amendments .  Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement shall be effective against the Company or any Holder unless such modification, amendment or waiver is approved in writing by the Company and the Holders holding 66 2/3% of the Registrable Securities then held by the Holders; provided that any amendment, modification, supplement or waiver of any of the provisions of this Agreement which disproportionately materially adversely affects any Holder shall not be effective without the written approval of such Holder (it being understood that the proportionality and magnitude of such effect will be determined without regard to relative share ownership; and it being further acknowledged and agreed that the notice and other provisions of this Agreement may be waived with respect to any particular registration or transaction and such waiver shall not preclude any Holder from participating in such registration or transaction regardless of whether such Holder approved such waiver).  Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders of Registrable Securities whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect the rights of other Holders of Registrable Securities may be given by holders of at least 66 2/3% of the Registrable Securities being sold by such Holders pursuant to such Registration Statement.

 

(d)           Waivers .  No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.

 

(e)           Termination and Effect of Termination . This Agreement shall terminate with respect to each Holder when such Holder no longer holds any Registrable Securities and will terminate in full when no Holder holds any Registrable Securities, except for the provisions of Sections 6 and 7(b) , which shall survive any such termination. No termination under this Agreement shall relieve any Person of liability for breach or Registration Expenses incurred prior to termination. In the event this Agreement is terminated, each Person entitled to indemnification rights pursuant to Section 6 shall retain such indemnification rights with respect to any matter that (i) may be an indemnified liability thereunder and (ii) occurred prior to such termination.

 

(f)            Notices .  Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via electronic mail in PDF or similar electronic or digital format (with confirmation of receipt) prior to 5:00 p.m. (New York time) on a business day in the place of receipt, (ii) the Business Day after the date of transmission, if such notice or communication is delivered via electronic mail in PDF or similar electronic or digital format (with confirmation of receipt) later than 5:00 p.m. (New York time) on any date and earlier than 11:59 p.m. (New York time) on such date, (iii) the

 

24



 

Business Day following the date of mailing, if sent by nationally recognized overnight courier service or (iv) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as follows (or at such other address as shall be given in writing by any party to the others):

 

if to the Company to:

 

 

 

FTS International, Inc.

 

777 Main Street, Suite 2900

 

Fort Worth, Texas 76102

 

Attention: Jennifer L. Keefe

 

Email: jennifer.keefe@ftsi.com

 

 

 

with a copy (which will not constitute notice) to:

 

 

 

Jones Day

 

2727 North Harwood Street

 

Dallas, Texas 75201

 

Attention: Katherine Ettredge

 

Email: Kettredge@jonesday.com

 

 

 

if to Maju, to:

 

 

 

Maju Investments (Mauritius) Pte Ltd

 

c/o SGG Corporate Services (Mauritius) Ltd

 

33, Edith Cavell Street

 

Port Louis, 11324, Republic of Mauritius

 

 

 

with a copy (which will not constitute notice) to:

 

 

 

60B Orchard Road

 

#06-18 Tower 2

 

The Atrium@Orchard

 

Singapore 238891

 

Attention: Ms. Tay Su Lian, Margaret

 

Email: suliantay@temasek.com.sg

 

 

 

with a copy (which will not constitute notice) to:

 

 

 

Sullivan & Cromwell LLP

 

125 Broad Street

 

New York, NY 10004-2498

 

Attention:

Robert E. Buckholz

 

 

C. Andrew Gerlach

 

Email:

buckholzr@sullcrom.com

 

 

gerlacha@sullcrom.com

 

 

 

 

if to Chesapeake, to:

 

 

25



 

Chesapeake Energy Corporation

 

6100 North Western Avenue

 

Oklahoma City, Oklahoma

 

Attn: James R. Webb

 

Email: jim.webb@chk.com

 

with a copy (which will not constitute notice) to:

 

 

 

Baker Botts L.L.P.

 

910 Louisiana Street

 

Houston, Texas 77002

 

Attn: Gene J. Oshman

 

Email: gene.oshman@bakerbotts.com

 

 

 

if to Senja, to:

 

 

 

c/o CCS Trustees Limited

 

263 Main Street P.O. Box 2196

 

Road Town Tortola

 

British Virgin Islands

 

Attn: Mr. Ong Tiong Sin

 

Email: richard.ong@rrjcap.com

 

 

 

with a copy (which will not constitute notice) to:

 

 

 

RRJ Management (S) Pte Ltd,

 

298 Tiong Bahru Road,

 

#13-01 Central Plaza,

 

Singapore 168730

 

Attn: Mr. Ong Tiong Sin; RRJ Finance

 

Email: richard.ong@rrjcap.com; rrj_finance@rrjcap.com

 

 

 

if to Hampton, to:

 

 

 

c/o CCS Trustees Limited

 

263 Main Street P.O. Box 2196

 

Road Town Tortola

 

British Virgin Islands

 

Attn: Mr. Ong Tiong Sin

 

Email: richard.ong@rrjcap.com

 

 

 

with a copy (which will not constitute notice) to:

 

 

 

RRJ Management (S) Pte Ltd,

 

298 Tiong Bahru Road,

 

#13-01 Central Plaza,

 

Singapore 168730

 

Attn: Mr. Ong Tiong Sin; RRJ Finance

 

Email: richard.ong@rrjcap.com; rrj_finance@rrjcap.com

 

 

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If to any other Person who is then a Holder, to the address of such Holder which has been designated by notice in writing by such Person to the others in accordance with the provisions of this Section 8(f) .

 

(g)           Successors and Assigns; New Issuances .  Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and the respective successors and Permitted Transferees. This Agreement may not be assigned by the Company without the prior written consent of the Holders of 66 2/3% of the Registrable Securities. Each Holder shall have the right to assign all or part of its rights and obligations under this Agreement only in accordance with transfers of Registrable Securities to such Holder’s Permitted Transferees. If any Holder shall acquire additional Registrable Securities, such Registrable Securities shall be subject to all of the terms, and entitled to all the benefits, of this Agreement.

 

(h)           Governing Law .  This Agreement and all claims arising out of or based upon this Agreement or relating to the subject matter hereof shall be governed by and construed in accordance with the domestic substantive laws of the State of Delaware without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction.

 

(i)            Submission to Jurisdiction and Venue .  Each of the parties, by its execution of this Agreement,  hereby irrevocably submits to the exclusive venue and jurisdiction of the Court of Chancery of the State of Delaware for the purpose of any proceeding arising out of or based upon this Agreement or relating to the subject matter hereof.  Notwithstanding the foregoing, to the extent that any party hereto is or becomes a party in any litigation in connection with which it may assert indemnification rights set forth in this Agreement, the court in which such litigation is being heard shall be deemed to be included in the previous sentence.  Notwithstanding the foregoing, any party to this Agreement may commence and maintain an action to enforce a judgment of any of the above-named courts in any court of competent jurisdiction.

 

(j)            Cumulative Remedies .  The remedies provided herein are cumulative and not exclusive of any remedies provided by law.

 

(k)           Severability .  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction.  It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

 

(l)            Entire Agreement .  This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior contracts or agreements with respect to the subject matter hereof and supersedes any and all prior or contemporaneous discussions, agreements and understandings, whether oral or written, that may have been made

 

27



 

or entered into by or among any of the parties or any of their respective Affiliates relating to the transactions contemplated hereby.

 

(m)          Execution of Agreement .  This Agreement may be executed and delivered (by facsimile, by electronic mail in portable document format (.pdf) or otherwise) in any number of counterparts, each of which, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same agreement.

 

(n)           Determination of Ownership .  In determining ownership of Company Common Stock hereunder for any purpose, the Company may rely solely on the records of the transfer agent for the Company Common Stock from time to time, or, if no such transfer agent exists, the Company’s stock ledger.

 

(o)           Headings; Section References .  The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

 

(p)           No Recourse .  Notwithstanding anything that may be expressed or implied in this Agreement, and notwithstanding the fact that certain of the Holders may be partnerships or limited liability companies, each Holder covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered in connection with this Agreement shall be had against any of the Company’s or the Holder’s former, current or future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, financing sources, managers, general or limited partners or assignees (each, a “ Related Party ” and collectively, the “ Related Parties ”), in each case other than the Company, the current or former Holders or any of their respective assignees under this Agreement, whether by the enforcement of any assessment or by any legal or equitable Proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any of the Related Parties, as such, for any obligation or liability of the Company or the Holders under this Agreement or any documents or instruments delivered in connection herewith for any claim based on, in respect of or by reason of such obligations or liabilities or their creation; provided , however , nothing in this Section 8(p)  shall relieve or otherwise limit the liability of the Company or any current or former Holder, as such, for any breach or violation of its obligations under this Agreement or such agreements, documents or instruments.

 

(q)           Recapitalizations, Exchanges, etc.   The provisions of this Agreement shall apply to the full extent set forth herein with respect to (a) the Company Common Stock, (b) any and all securities into which shares of Company Common Stock are converted, exchanged or substituted in any recapitalization or other capital reorganization by the Company and (c) any and all equity securities of the Company or any successor or assign of the Company (whether by merger, consolidation, sale of assets or otherwise) which may be issued in respect of, in conversion of, in exchange for or in substitution of, the Company Common Stock and shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring after the date hereof. The Company shall cause any successor or assign (whether by merger, consolidation, sale of assets or otherwise) to assume the obligations of the Company under this Agreement or enter into a new registration rights agreement with the Holders on terms substantially the same as this Agreement as a condition of any such transaction.

 

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(r)            Limitations on Subsequent Registration Rights . The Company agrees that it shall not enter into any agreement with any holder or prospective holder of any securities of the Company (i) that would allow such holder or prospective holder to include such securities in any Demand Registration, Piggyback Registration or Shelf Registration unless, under the terms of such agreement, such holder or prospective holder may include such securities in any such registration only to the extent that their inclusion would not reduce the amount of the Registrable Securities of the Holders included therein or (ii) on terms otherwise more favorable in the aggregate than this Agreement. The Company also represents and warrants to each Holder that it has not previously entered into any agreement with respect to any of its securities granting any registration rights to any Person with respect to the Registrable Securities.

 

(s)            Governing Documents .  In the event of any conflict between the terms and provisions of Section 8 of this Agreement and those contained in the Certificate of Incorporation, Bylaws or other similar governing documents of the Company, the terms and provisions of Section 8 of this Agreement shall govern and control to the maximum extent permitted by DGCL.

 

(t)            General Interpretive Principles .  When a reference is made in this Agreement to a Section, Schedule or Exhibit such reference will be to a Section of, or a Schedule or Exhibit to, this Agreement unless otherwise indicated.  The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include,” “ includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.”  The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement will refer to this Agreement as a whole (including the Schedules and Exhibits) and not to any particular provision of this Agreement.  All terms defined in this Agreement will have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein.  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and, except as otherwise expressly provided or unless the context otherwise requires, any noun or pronoun will be deemed to cover all genders.  Any statute, rule, order or regulation defined or referred to in this Agreement or in any agreement or instrument that is referred to in this Agreement will mean such statute, rule, order or regulation as from time to time amended, updated, modified, supplemented or superseded, including by succession of comparable successor statutes, rules, orders or regulations and references to all attachments thereto and instruments incorporated therein.  Where specific language is used to clarify by example a general statement contained herein, such specific language will not be deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates.  The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party.

 

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.

 

 

FTS INTERNATIONAL, INC.

 

 

 

 

 

By:

/s/ Michael J. Doss

 

Name: Michael J. Doss

 

Title: Chief Executive Officer

 

 

 

 

 

MAJU INVESTMENTS (MAURITIUS) PTE LTD

 

 

 

 

 

By:

/s/ Tay Sulian

 

Name: Tay Sulian

 

Title: Authorized Signatory

 

 

 

 

 

CHK ENERGY HOLDINGS, INC.

 

 

 

 

 

By:

/s/ Domenic J. Dell’Osso, Jr.

 

Name: Domenic J. Dell’Osso, Jr.

 

Title: Director

 

 

 

 

 

SENJA CAPITAL LTD

 

 

 

 

 

By:

/s/ Ong Tiong Sin

 

Name: Ong Tiong Sin

 

Title: Director

 

 

 

 

 

HAMPTON ASSET HOLDING LTD.

 

 

 

 

 

By:

/s/ Ong Tiong Sin

 

Name: Ong Tiong Sin

 

Title: Director

 

[ Signature Page to Registration Rights Agreement ]

 



 

EXHIBIT A

 

Form of Joinder Agreement

 

The undersigned hereby agrees, effective as of the date set forth below, to become a party to that certain Registration Rights Agreement (as amended, restated and modified from time to time, the “ Agreement ”) dated as of [•] , 2018, by and among FTS International, Inc., a Delaware corporation (the “ Company ”), and the stockholders of the Company named therein, and for all purposes of the Agreement the undersigned will be included within the term “Holder” (as defined in the Agreement).  The address, facsimile number and email address to which notices may be sent to the undersigned are as follows:

 

Address:                   

 

Facsimile No.:

Email:

Date:

 

 

[ If entity ]

 

 

 

[ ENTITY NAME ]

 

 

 

 

 

By:

 

 

 

Name:

 

 

Title:

 

 

 

 

 

 

[ If individual ]

 

 

 

 

 

Individual Name:

 




Exhibit 4.4

 

INVESTORS’ RIGHTS AGREEMENT BY AND AMONG
FTS INTERNATIONAL, INC., MAJU INVESTMENTS (MAURITIUS) PTE LTD AND CHK ENERGY HOLDINGS, INC.

 

This Investors’ Rights Agreement (this “ Agreement ”) is made and entered into as of February 1, 2018, by and among FTS International, Inc., a Delaware corporation (the “ Company ”), Maju Investments (Mauritius) Pte Ltd (“ Maju ”) and CHK Energy Holdings, Inc. (“ Chesapeake ” and together with Maju, the “ Investors ”).

 

In consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party hereto, the parties hereto agree as follows:

 

Section 1. Definitions .  As used in this Agreement, the following terms have the following meanings:

 

Affiliate ” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act (as defined below), as in effect on the date hereof.  For the avoidance of doubt, neither the Company nor any Person controlled by the Company will be deemed to be an Affiliate of any Investor or of any Affiliate of any Investor.

 

Agreement ” has the meaning set forth in the preamble.

 

Amended and Restated Bylaws ” means the amended and restated bylaws of the Company.

 

Amended and Restated Certificate of Incorporation ” means the amended and restated certificate of incorporation of the Company.

 

Beneficially Owned ”, “ beneficial ownership ” and similar phrases have the same meanings as such terms have under Rule 13d-3 (or any successor rule then in effect) under the Exchange Act and “ own ” will have a correlative meaning, except that in calculating the beneficial ownership of any Investor, such Investor will be deemed to have beneficial ownership of all securities that such Investor has the right to acquire, whether such right is currently exercisable or is exercisable upon the occurrence of a subsequent event.

 

Board ” means the board of directors of the Company.

 

Chesapeake Director ” means each person designated by Chesapeake hereunder to serve as a director on the Board.

 

Chesapeake Entities ” means Chesapeake, its Affiliates and their respective successors and Permitted Assigns.

 

Chesapeake has the meaning set forth in the preamble.

 

Closing Date ” means the date of the completion of the IPO.

 



 

Common Stock ” means the common stock, par value $0.01 per share, of the Company and any and all securities of any kind whatsoever of the Company that may be issued after the date of this Agreement in respect of, or in exchange for, such shares of common stock of the Company pursuant to a merger, consolidation, stock split, stock dividend or recapitalization of the Company or otherwise.

 

Company ” has the meaning set forth in the preamble.

 

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

Investors ” has the meaning set forth in the preamble.

 

Investor Director ” means a director nominated by an Investor.

 

Investor Director Requirements ” has the meaning set forth in Section 2(a) .

 

Investor Party ” has the meaning set forth in Section 5 .

 

Investor Transferee ” has the meaning set forth in Section 5(g) .

 

IPO ” means the underwritten initial public offering of Common Stock by the Company pursuant to the Registration Statement on Form S-1 (Registration No. 333-215998).

 

Maju Director ” each person designated by Maju hereunder to serve as a director on the Board.

 

Maju Entities ” means Maju, its Affiliates and their respective successors and Permitted Assigns.

 

Maju has the meaning set forth in the preamble.

 

NYSE ” means The New York Stock Exchange.

 

Permitted Assigns ” means a Transferee of shares of Common Stock that agrees to become party to, and to be bound to the same extent as its Transferor by the terms of, this Agreement.

 

Person ” means any individual, corporation, limited liability company, private limited company, public limited company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, governmental entity or agency or other entity of any kind or nature.

 

Proprietary Information ” has the meaning set forth in Section 4 .

 

SEC ” means the Securities and Exchange Commission or such other federal agency which at such time administers the Securities Act.

 

Securities Act ” means the Securities Act of 1933, as amended.

 

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Subsidiary ” means, with respect to any Person, (i) any corporation, limited liability company, partnership or other entity of which shares of capital stock or other ownership interests having ordinary voting power to elect a majority of the board of directors or other similar managing body of such corporation, limited liability company, partnership or other entity are at the time directly or indirectly owned or controlled by such Person, or (ii) the management of which is otherwise controlled, directly or indirectly, by such Person.

 

Transfer ” (including its correlative meanings, “ Transferor ”, “ Transferee ” and “ Transferred ”) means with respect to any security to transfer, sell, assign, distribute, pledge, encumber, hypothecate, assign, exchange, or in any other way directly or indirectly dispose of, in whole or in part, either voluntarily or involuntarily, including by gift, by way of merger (forward or reverse) or similar transaction, by operation of law or otherwise, any security or any legal or beneficial interest therein, including the grant of an option or other right or interest that would result in the transferor no longer having the economic consequences of ownership in, or the power to vote, such security. When used as a noun, “ Transfer ” will have such correlative meaning as the context may require.

 

Section 2.  Board of Directors .

 

(a)                                  Maju Board Representation .  Following the Closing Date, Maju will have the right, but not the obligation, to cause the Company, and, if so directed, the Company will take all reasonably necessary action, to include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected, or pursuant to a written consent, that number of individuals designated by Maju that, if elected, will result in the following number of Maju Directors serving on the Board: (i) two directors, for so long as the Maju Entities beneficially own 15% or more of the outstanding shares of Common Stock and (ii) one director, for so long as the Maju Entities beneficially own 5% or more, but less than 15%, of the outstanding shares of Common Stock; provided , however , that the Maju Directors will be qualified to serve as a member of the Board under the reasonable requirements of the Company’s charter and all current corporate governance policies and guidelines of the Company and the Board as of the date hereof (with all such applicable policies and guidelines being set forth on Annex A hereto), and all applicable legal, regulatory and NYSE or other applicable stock exchange requirements (all such requirements, the “ Investor Director Requirements ”), and if any determination is made that any nominee of Maju is not qualified to serve, Maju will be entitled to continue to cause a nominee to be another individual until such determination is made.  The Company agrees that, assuming the accuracy of the information in the applicable director and officer questionnaire submitted to the Company prior to the date hereof, (i) both Messrs. Goh and Sim are, and will be following the Closing Date, qualified to serve as a member of the Board as contemplated hereby and (ii) at least one of the Maju Directors will meet the independence requirements of the rules and regulations of the SEC and the NYSE or other applicable stock exchange for the Board and all committees of the Board, other than the audit committee, after the end of the applicable transition periods following the IPO.  Unless otherwise agreed by Maju, a Maju Director will serve on any committee of the Board to the extent permitted by applicable listing requirements and SEC rules.  Unless otherwise agreed by Maju, Mr. Goh will be nominated as a Class III Director and Mr. Sim will be nominated as a Class I Director.  The Company will, at a minimum, use the same efforts to cause the election of the Maju Directors as it uses to cause other nominees

 

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recommended by the Board to be elected, including soliciting proxies in favor of the election of such Maju Directors.

 

(b)                                  Chesapeake Board Representation .  Following the Closing Date, Chesapeake will have the right, but not the obligation, to cause the Company, and, if so directed, the Company will take all reasonably necessary action, to include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected, or pursuant to a written consent, that number of individuals designated by Chesapeake that, if elected, will result in the following number of Chesapeake Directors serving on the Board: (i) two directors, for so long as the Chesapeake Entities beneficially own 15% or more of the outstanding shares of Common Stock and (ii) one director, for so long as the Chesapeake Entities beneficially own 5% or more, but less than 15%, of the outstanding shares of Common Stock; provided , however , that the Chesapeake Directors will satisfy the Investor Director Requirements, and if any determination is made that any nominee of Chesapeake is not qualified to serve, Chesapeake will be entitled to continue to cause a nominee to be another individual until such determination is made.    The Company agrees that, assuming the accuracy of the information in the applicable director and officer questionnaire submitted to the Company prior to the date hereof, (i) both Messrs. Dell’Osso and Lemmerman are, and will be following the Closing Date, qualified to serve as a member of the Board as contemplated hereby and (ii) at least one of the Chesapeake Directors will meet the independence requirements of the rules and regulations of the SEC and the NYSE or other applicable stock exchange for the Board and all committees of the Board after the end of the applicable transition periods following the IPO. Without limiting the generality of the foregoing, no prior or future transaction between Chesapeake and its Affiliates and the Company of a type similar to that described in the Registration Statement under “ Certain Relationships and Related Party Transactions—Transactions with Chesapeake ” will change such determination with respect to clause (i) above with respect to Messrs. Dell’Osso or Lemmerman or other Chesapeake nominee.  Unless otherwise agreed by Chesapeake, a Chesapeake Director will serve on any committee of the Board to the extent permitted by applicable listing requirements and SEC rules.  Unless otherwise agreed by Chesapeake, Mr. Dell’Osso will be nominated as a Class III Director and Mr. Lemmerman will be nominated as a Class I Director. The Company will, at a minimum, use the same efforts to cause the election of the Chesapeake Directors as it uses to cause other nominees recommended by the Board to be elected, including soliciting proxies in favor of the election of such Chesapeake Directors.

 

(c)                                   Vacancies .  In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal of any Investor Director, or in the event any Investor Director fails to be elected, the Company and the Board (to the extent permitted under the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws) will take all reasonably necessary action to cause the vacancy created thereby to be filled as soon as practicable by a new designee of the Investor that had previously designated such Investor Director, for so long as such Investor has the right to designate an individual for nomination to the Board under this Agreement.

 

(d)                                  Director Resignation .  Upon any decrease in the number of directors that an Investor is entitled to designate for nomination to the Board, such Investor will take all

 

4



 

reasonably necessary action to cause the appropriate number of such Investor’s Directors to offer to tender their resignation.

 

(e)                                   Voting Obligations .  Each Investor agrees to at all times take all reasonably necessary action, including voting or providing a written consent or proxy with respect to the Common Stock it beneficially owns, to ensure the election of the directors nominated or designated by the other Investor to the Board and to ensure that the terms and intentions of this Agreement are carried out and observed.

 

(f)                                    Observer Rights . For so long as Maju or Chesapeake beneficially owns 5% or more of the outstanding shares of Common Stock, such 5% beneficial owner may elect to designate one non-voting observer to attend all meetings of the Board and committees of the Board; provided , however , that the observer may be excused from a meeting of the Board or any committee thereof to permit the members of the Board, or committee, as applicable, to act on any matter in which such observer’s participation is not appropriate based upon applicable NYSE rules, regulations or guidance.  The Company will give such observer copies of all notices, minutes, consents, and other materials that it provides to its Board or a committee of the Board, at the same time and in the same manner as provided to the Board or committee of the Board; provided , however , that each observer receiving information pursuant to this Section 2(f)  will comply with the requirements of Section 4 herein.

 

(g)                                   Advance Notification . With respect to an Investor, the Company will not require compliance with any provision of the Amended and Restated Bylaws that requires a stockholder seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at a meeting of stockholders to provide notice (in compliance with form and content requirements) in writing in a timely manner.

 

(h)                                  Indemnification Agreements . The Company will enter into customary indemnification agreements with each of its directors.

 

(i)                                      Notice of Change in Beneficial Ownership .  Each Investor agrees to give prompt notice to the other Investor and to the Company if such Investor ceases to beneficially own 5% or more of the outstanding shares of Common Stock.

 

Section 3.  Information and Access .

 

(a)                                  For so long as Maju owns 5% or more of the outstanding shares of Common Stock, subject to applicable law, Maju shall have, at reasonable times and upon reasonable notice, full access to all books and records of the Company or any of its Subsidiaries, shall be entitled to review and copy them at its discretion, shall be entitled to inspect the properties and assets of the Company or any of its Subsidiaries and consult with management of the Company and shall be furnished, reasonably promptly following its request therefor, such information concerning the business, properties, contracts, assets, liabilities, personnel and other aspects of the Company or any of its Subsidiaries as reasonably requested by Maju.

 

(b)                                  For so long as Chesapeake owns 5% or more of the outstanding shares of Common Stock, subject to applicable law, Chesapeake shall have, at reasonable times and upon reasonable notice, full access to all books and records of the Company or any of its Subsidiaries,

 

5



 

shall be entitled to review and copy them at its discretion, shall be entitled to inspect the properties and assets of the Company or any of its Subsidiaries and consult with management of the Company and shall be furnished, reasonably promptly following its request therefor, such information concerning the business, properties, contracts, assets, liabilities, personnel and other aspects of the Company or any of its Subsidiaries as reasonably requested by Chesapeake.

 

Section 4.  Confidentiality .  Each Investor will maintain the confidentiality of any confidential and proprietary information of the Company received under Section 2(a)  or Section 2(b)  of this Agreement, including any information received by any Investor pursuant to Section 2(f)  hereof (“ Proprietary Information ”), using the same standard of care, but in no event less than reasonable care, as it applies to its own confidential information; provided , however , that an Investor may disclose Proprietary Information (a) to any Affiliate, partner, limited partner, member, trustee, investor or related investment fund of such Investor and its and their respective investors, limited partners, directors, employees, agents, professional advisors and consultants, or (b) as may otherwise be required by law, rule, regulation, subpeona, legal process or self-regulatory organization, and further provided , that (i) such Proprietary Information provided pursuant to clause (a) and (b)  above is identified prior to disclosure by the Investor to the recipient as requiring confidential treatment, and (ii) the disclosing Investor will be responsible for the acts and omissions related to the Proprietary Information of any Person to whom such Investor discloses Proprietary Information (other than pursuant to clause (b)  above).  For purposes of this Agreement, Proprietary Information will not include any information (a) that is publicly available (other than as a result of dissemination by such Investor in violation hereof) or a matter of public knowledge generally, (b) that was known to such Investor on a non-confidential basis, without, to such Investor’s actual knowledge, breach of any confidentiality obligations to the Company, prior to its disclosure by the Company under this Agreement, (c) that is or was independently developed or conceived by such Investor without use of the Proprietary Information or (d) that is received by the Investor from a source as to which such Investor has no actual knowledge, was in breach of any confidentiality obligation to the Company.

 

Section 5.  Corporate Opportunities; Other Agreements .

 

(a)                                  To the fullest extent permitted by applicable law, the Company, on behalf of itself and its Subsidiaries, hereby renounces any interest, duty or expectancy of the Company and its Subsidiaries in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to any Investor, any Affiliate of any Investor or any director (or director of any Subsidiary of the Company) designated by any of the foregoing (each an “ Investor Party ”) even if the opportunity is one that the Company or its Subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so and each Investor Party will have no duty to communicate or offer such business opportunity to the Company and to the fullest extent permitted by applicable law, will not be liable to the Company or any of its Subsidiaries for breach of any fiduciary or other duty, as a director or otherwise, by reason of the fact that such Investor Party pursues or acquires such business opportunity, directs such business opportunity to another Person or fails to present such business opportunity, or information regarding such business opportunity, to the Company or its Subsidiaries.

 

6



 

(b)                                  The Company has and may from time to time enter into and perform, and cause or permit its Affiliates to enter into and perform, one or more agreements (or modifications or supplements to pre-existing agreements) with Chesapeake or its Affiliates.  These agreements include without limitation a Master Service Agreement dated July 9, 2012, and a Master Commercial Agreement dated December 24, 2016, with Subsidiaries of Chesapeake, as well as subsequent written purchase or work orders. Neither such agreements, nor the performance thereof (nor the grant of or refusal to grant waivers thereunder) by Chesapeake or any of its Affiliates, will, to the fullest extent permitted by applicable law, be considered contrary to any fiduciary duty of any Chesapeake Director, to the Company or such Affiliates, or to any stockholder or owner of any other equity interest thereof. Except to the extent specifically set forth in such agreements or otherwise required by law, neither Chesapeake nor any of its Affiliates has any duty or obligation to the Company or any of its Affiliates or to any stockholder or other owner of an equity interest in the Company or any of its Affiliates for any reason, including any claimed duty or obligation as a result of Chesapeake’s or any of its Affiliates’ being a significant stockholder of the Company or as a result of any of Chesapeake Director’s being deemed to participate in the control of the Company or of any of its Affiliates.

 

(c)                                   Notwithstanding anything in this Agreement to the contrary, each of the Parties acknowledges and agrees that the Investors and their Affiliates have obtained, prior to the date hereof, and are expected to obtain, on and after the date hereof, confidential information from other companies in connection with Persons engaged in businesses that are in similar lines of business or that directly or indirectly compete with the business of the Company and its Subsidiaries and conducted from time to time or as expected to be conducted from time to time. Each of the Parties hereby agrees that none of the Investors nor any of their Affiliates (nor any Maju Director or Chesapeake Director) has any obligation to use any such confidential information in connection with the business, operations, management or other activities of the Company or its Subsidiaries or to furnish to the Company or its Subsidiaries any such confidential information.

 

(d)                                  Any claims against, actions, rights to sue, other remedies or other recourse to or against any Investor or any of their respective Affiliates and any Maju Director or Chesapeake Director for or in connection with the matters in clauses (a), (b) and (c) (including business opportunities, confidential information and agreements with Chesapeake and its Affiliates) of this Section, whether arising in common law or equity or created by rule of law, statute, constitution, contract (including this Agreement) or otherwise, are expressly released and waived by each Party to the fullest extent permitted by Law.

 

(e)                                   The Company will not, without the prior consent of the Investors, amend or repeal Article XII of the Amended and Restated Certificate of Incorporation nor recommend any such action to its stockholders.

 

(f)                                    The Company will not amend or repeal any provision of the Amended and Restated Certificate of Incorporation or, by means of an amendment effected through actions of the Board, amend the Amended and Restated Bylaws, in either case, if such amendment or repeal is of a provision of the Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws that implements the provisions of this Agreement nor recommend any such action to its stockholders.

 

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(g)                                   So long as an Investor beneficially owns at least 15% of the outstanding shares of Common Stock, the Company will not, without the prior consent of such Investor, adopt any amendments to its Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws, adopt or enter into a stockholder rights plan (including a “poison pill” rights plan) or similar agreement or take any action during the term of this Agreement which in any of the foregoing cases would (i) impose limitations on the legal rights of an Investor or its Affiliates or any transferee of any securities of the Company from an Investor or its Affiliates (an “ Investor Transferee ”) as a direct or indirect stockholder of the Company other than those imposed pursuant to the express terms of this Agreement or the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, including any action which would impose restrictions (A) based upon the size of security holding, (B) applicable to an Investor, its Affiliates or an Investor Transferee and not to security holders generally or (C) involving impairment of rights granted to an Investor, its Affiliates or an Investor Transferee, (ii) involve the issuance of any warrant, right, Common Stock or other security (a) which is, or under specified circumstances will become, convertible into or represent the right to acquire any securities of an Investor, its Affiliates or an Investor Transferee or (b) which is dependent upon the amount of voting securities owned by an Investor, its Affiliates or an Investor Transferee; provided, that this Section 5(g)  will not prohibit the Company from taking any action otherwise prohibited hereby, so long as an Investor, its Affiliates and each Investor Transferee are, either expressly or as part of a class of direct or indirect stockholders exempted from such action or the limitations on legal rights imposed thereby.

 

Section 6.  Representations and Warranties .  Each of the Investors and the Company represents and warrants to each other as stated below; provided that the Investors are not making any representation or warranty with respect to the Company or the other Investor in this Section 6 , and the Company is not making any representation or warranty with respect to the Investors in this Section 6 :

 

(a)                                  The Company has been duly incorporated and is in good standing under the laws of Delaware, and has the corporate power and capacity and is duly qualified to own or lease its property and to carry on its business as now conducted in each jurisdiction in which it owns or leases property or carries on business, except where failure to be so duly qualified has not had or would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the assets, liabilities, financial condition, business or results of operations of the Company.

 

(b)                                  The execution and delivery of this Agreement has been duly and validly authorized by each Investor and the Company.

 

(c)                                   This Agreement has been duly and validly executed and delivered by each Investor and the Company and is a valid and legally binding obligation of each Investor and the Company, enforceable against each of them in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency and other applicable laws affecting creditors’ rights generally and to general principles of equity.

 

(d)                                  Apart from this Agreement and the Investors’ Rights Agreement, dated as of the date hereof, among the Company, Senja Capital Ltd and Hampton Asset Holding Ltd., there are

 

8



 

no stockholders agreements, pooling agreements, voting trusts or other similar agreements with respect to the ownership or voting of any of the shares of the Company.

 

Section 7. Termination .  This Agreement will terminate automatically (without any action by any party hereto) as to an Investor upon the time at which such Investor no longer has the right to designate an individual for nomination to the Board under this Agreement; provided , that the provision in Section 2(d)  and Section 2(i)  will survive such termination.

 

Section 8.  Further Assurances .  At any time or from time to time after the date of this Agreement, the parties 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 such other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the parties hereunder.

 

Section 9.  Amendment and Waiver .  Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement will be effective against the Company or any Investor unless such modification, amendment or waiver is approved in writing by the Company and such Investor.  Notwithstanding the foregoing, no amendment will be made or waiver granted in a manner that adversely affects any Investor or its rights hereunder without the prior written consent of such affected party.  The failure of any party to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

 

Section 10.  Entire Agreement .  This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

 

Section 11.  Successors and Assigns .  Except as otherwise provided herein, this Agreement will bind and inure to the benefit of and be enforceable by the Company and its successors and assigns and each Investor and its successors, Permitted Assigns, heirs and personal representatives.  Subject to compliance with the provisions of this Agreement, (i) each Investor will, at any time and without the consent of any other party hereto, have the right to assign all or part of its rights and obligations under this Agreement to one or more of its Affiliates and (ii) each Investor will, at any time and without the consent of any other party hereto, have the right to assign all or part of its rights and obligations under this Agreement to any Person to whom such Investor Transfers Common Stock in accordance with this Agreement; and provided that an Investor will not be permitted to assign any of its rights under Section 2 if the effect of such assignment would cause a change of control or default under any material debt agreement of the Company.  Upon any such permitted assignment, such assignee will have and be able to exercise and enforce all rights of the assigning party which are assigned to it and, to the extent such rights are assigned, any reference to the assigning Investor will be treated as a reference to the assignee.

 

9


 

Section 12.  Severability .  Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

 

Section 13.  Remedies .  Each party hereto will be entitled to enforce its rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in its favor.  The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that each party may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief (without posting a bond or other security) in order to enforce or prevent any violation of the provisions of this Agreement.

 

Section 14.  Notices .  All notices, requests, consents and other communications hereunder to any party will be deemed to be sufficient if contained in a written instrument delivered in person or by email (with a confirmation of receipt or confirmatory copy sent by different means within three business days of such notice), nationally recognized overnight courier or first class registered or certified mail, return receipt requested, postage prepaid, addressed to such party at the address set forth below or at such address or to the attention of such other person as may hereafter be designated in writing by such party to the other parties:

 

if to the Company to:

 

FTS International, Inc.

777 Main Street, Suite 2900

Fort Worth, Texas 76102

Attention: Jennifer L. Keefe

Email: jennifer.keefe@ftsi.com

 

with a copy (which will not constitute notice) to:

 

Jones Day

2727 North Harwood Street

Dallas, Texas 75201

Attention: Katherine Ettredge

Email: Kettredge@jonesday.com

 

if to Maju, to:

 

Maju Investments (Mauritius) Pte Ltd

c/o SGG Corporate Services (Mauritius) Ltd

33, Edith Cavell Street

Port Louis, 11324, Republic of Mauritius

 

10



 

with a copy (which will not constitute notice) to:

 

60B Orchard Road

#06-18 Tower 2

The Atrium@Orchard

Singapore 238891

Attention: Ms. Tay Su Lian, Margaret

Email: suliantay@temasek.com.sg

 

with a copy (which will not constitute notice) to:

 

Sullivan & Cromwell LLP

125 Broad Street

New York, NY 10004-2498

Attention:

Robert E. Buckholz

 

C. Andrew Gerlach

Email:

buckholzr@sullcrom.com

 

gerlacha@sullcrom.com

 

if to Chesapeake, to:

 

Chesapeake Energy Corporation

6100 North Western Avenue

Oklahoma City, Oklahoma

Attn: James R. Webb

Email: jim.webb@chk.com

 

with a copy (which will not constitute notice) to:

 

Baker Botts L.L.P.

910 Louisiana Street

Houston, Texas 77002

Attn: Gene J. Oshman

Email: gene.oshman@bakerbotts.com

 

All such notices, requests, consents and other communications will be deemed to have been given hereunder when received.

 

Section 15.  Governing Law; Submission to Jurisdiction and Venue .

 

(a)                                  Governing Law .  This Agreement and all claims arising out of or based upon this Agreement or relating to the subject matter hereof will be governed by and construed in accordance with the domestic substantive laws of the State of Delaware without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction.

 

(b)                                  Submission to Jurisdiction and Venue .  Each of the parties, by its execution of this Agreement,  hereby irrevocably submits to the exclusive venue and jurisdiction of the Court of

 

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Chancery of the State of Delaware for the purpose of any proceeding arising out of or based upon this Agreement or relating to the subject matter hereof.

 

Section 16.  Descriptive Headings .  The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

 

Section 17.  Conflicting Agreements .  Other than with respect to proxies or powers of attorney that one or more of the Investors may have granted or grant to an Affiliate of such Investor, each Investor represents and warrants that such Investor has not granted and is not a party to any proxy, voting trust or other agreement that conflicts with any provision of this Agreement, and no Investor will grant any proxy or become party to any voting trust or other agreement that conflicts with any provision of this Agreement.

 

Section 18.  Counterparts .  This Agreement may be executed in separate counterparts each of which will be an original and all of which taken together will constitute one and the same agreement.

 

Section 19.  General Interpretive Principles .  When a reference is made in this Agreement to a Section, Schedule or Exhibit such reference will be to a Section of, or a Schedule or Exhibit to, this Agreement unless otherwise indicated.  The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “ include ,” “ includes ” or “ including ” are used in this Agreement, they will be deemed to be followed by the words “ without limitation .”  The words “ hereof ,” “ herein ” and “ hereunder ” and words of similar import when used in this Agreement will refer to this Agreement as a whole (including the Schedules and Exhibits) and not to any particular provision of this Agreement.  All terms defined in this Agreement will have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein.  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and, except as otherwise expressly provided or unless the context otherwise requires, any noun or pronoun will be deemed to cover all genders.  Any statute, rule, order or regulation defined or referred to in this Agreement or in any agreement or instrument that is referred to in this Agreement will mean such statute, rule, order or regulation as from time to time amended, updated, modified, supplemented or superseded, including by succession of comparable successor statutes, rules, orders or regulations and references to all attachments thereto and instruments incorporated therein.  Where specific language is used to clarify by example a general statement contained herein, such specific language will not be deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates.  The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party.

 

[ Remainder of Page Intentionally Left Blank ]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Investors’ Rights  Agreement as of the day and year first written above.

 

 

FTS INTERNATIONAL, INC.

 

 

 

By:

/s/ Michael J. Doss

 

Name: Michael J. Doss

 

Title: Chief Executive Officer

 

 

 

 

 

MAJU INVESTMENTS (MAURITIUS) PTE LTD

 

 

 

 

 

By:

/s/ Tay Sulian

 

Name: Tay Sulian

 

Title: Authorized Signatory

 

 

 

 

 

CHK ENERGY HOLDINGS, INC.

 

 

 

 

 

By:

/s/ Domenic J. Dell’Osso, Jr.

 

Name: Domenic J. Dell’Osso, Jr.

 

Title: Director

 

[ Signature Page to Investors’ Rights Agreement ]

 



 

Annex A

 

Corporate Governance Guideline of the Company and the Board

 




Exhibit 4.5

 

INVESTORS’ RIGHTS AGREEMENT BY AND AMONG
FTS INTERNATIONAL, INC., SENJA CAPITAL LTD AND HAMPTON ASSET HOLDING LTD.

 

This Investors’ Rights Agreement (this “ Agreement ”) is made and entered into as of February 1, 2018, by and among FTS International, Inc., a Delaware corporation (the “ Company ”), Senja Capital Ltd (“ Senja ”), and Hampton Asset Holding Ltd. (“ Hampton ” and together with Senja, the “ Investors ”).

 

In consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each party hereto, the parties hereto agree as follows:

 

Section 1. Definitions .  As used in this Agreement, the following terms have the following meanings:

 

Affiliate ” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act (as defined below), as in effect on the date hereof.  For the avoidance of doubt, neither the Company nor any Person controlled by the Company will be deemed to be an Affiliate of any Investor or of any Affiliate of any Investor.

 

Agreement ” has the meaning set forth in the preamble.

 

Amended and Restated Bylaws ” means the amended and restated bylaws of the Company.

 

Amended and Restated Certificate of Incorporation ” means the amended and restated certificate of incorporation of the Company.

 

Beneficially Owned ”, “ beneficial ownership ” and similar phrases have the same meanings as such terms have under Rule 13d-3 (or any successor rule then in effect) under the Exchange Act and “ own ” will have a correlative meaning, except that in calculating the beneficial ownership of any Investor, such Investor will be deemed to have beneficial ownership of all securities that such Investor has the right to acquire, whether such right is currently exercisable or is exercisable upon the occurrence of a subsequent event.

 

Board ” means the board of directors of the Company.

 

Closing Date ” means the date of the completion of the IPO.

 

Common Stock ” means the common stock, par value $0.01 per share, of the Company and any and all securities of any kind whatsoever of the Company that may be issued after the date of this Agreement in respect of, or in exchange for, such shares of common stock of the Company pursuant to a merger, consolidation, stock split, stock dividend or recapitalization of the Company or otherwise.

 

Company ” has the meaning set forth in the preamble.

 



 

Exchange Act ” means the Securities Exchange Act of 1934, as amended.

 

Hampton Entities ” means Hampton, its Affiliates and their respective successors and Permitted Assigns.

 

Hampton has the meaning set forth in the preamble.

 

Investors ” has the meaning set forth in the preamble.

 

Investor Director ” means a director collectively nominated by the Investors.

 

Investor Party ” has the meaning set forth in Section 4 .

 

IPO ” means the underwritten initial public offering of Common Stock by the Company pursuant to the Registration Statement on Form S-1 (Registration No. 333-215998).

 

NYSE ” means The New York Stock Exchange.

 

Permitted Assigns ” means a Transferee of shares of Common Stock that agrees to become party to, and to be bound to the same extent as its Transferor by the terms of, this Agreement.

 

Person ” means any individual, corporation, limited liability company, private limited company, public limited company, limited or general partnership, joint venture, association, joint-stock company, trust, unincorporated organization, governmental entity or agency or other entity of any kind or nature.

 

Proprietary Information ” has the meaning set forth in Section 3 .

 

SEC ” means the Securities and Exchange Commission or such other federal agency which at such time administers the Securities Act.

 

Securities Act ” means the Securities Act of 1933, as amended.

 

Senja Entities ” means Senja, its Affiliates and their respective successors and Permitted Assigns.

 

Senja has the meaning set forth in the preamble.

 

Subsidiary ” means, with respect to any Person, (i) any corporation, limited liability company, partnership or other entity of which shares of capital stock or other ownership interests having ordinary voting power to elect a majority of the board of directors or other similar managing body of such corporation, limited liability company, partnership or other entity are at the time directly or indirectly owned or controlled by such Person, or (ii) the management of which is otherwise controlled, directly or indirectly, by such Person.

 

Transfer ” (including its correlative meanings, “ Transferor ”, “ Transferee ” and “ Transferred ”) means with respect to any security to transfer, sell, assign, distribute, pledge, encumber, hypothecate, assign, exchange, or in any other way directly or indirectly dispose of, in

 

2



 

whole or in part, either voluntarily or involuntarily, including by gift, by way of merger (forward or reverse) or similar transaction, by operation of law or otherwise, any security or any legal or beneficial interest therein, including the grant of an option or other right or interest that would result in the transferor no longer having the economic consequences of ownership in, or the power to vote, such security. When used as a noun, “ Transfer ” will have such correlative meaning as the context may require.

 

Section 2.  Board of Directors .

 

(a)                                  Investor Board Representation .  Following the Closing Date, Senja and Hampton will collectively have the right, but not the obligation, to cause the Company, and, if so directed, the Company will take all reasonably necessary action, to include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected, or pursuant to a written consent, the individual collectively designated by Senja and Hampton that, if elected, will result in one Investor Director serving on the Board for so long as the Senja Entities and Hampton Entities collectively beneficially own 5% or more of the outstanding shares of Common Stock; provided , however , that the Investor Director will be qualified to serve as a member of the Board under the reasonable requirements of the Company’s charter and all current corporate governance policies and guidelines of the Company and the Board as of the date hereof (with all such applicable policies and guidelines being set forth on Annex A hereto), and all applicable legal, regulatory and NYSE or other applicable stock exchange requirements, and if any determination is made that any nominee of the Investors is not qualified to serve, the Investors will be entitled to continue to cause a nominee to be another individual until such determination is made.  The Company agrees that, assuming the accuracy of the information in the applicable director and officer questionnaire submitted to the Company prior to the date hereof, Mr. Ong Tiong Sin is, and will be following the Closing Date, qualified to serve as a member of the Board as contemplated hereby.  Unless otherwise agreed by the Investors, Mr. Ong Tiong Sin will be nominated as a Class II Director.  The Company will, at a minimum, use the same efforts to cause the election of the Investor Director as it uses to cause other nominees recommended by the Board to be elected, including soliciting proxies in favor of the election of such Investor Director.

 

(b)                                  Vacancies .  In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal of the Investor Director, or in the event any Investor Director fails to be elected, the Company and the Board (to the extent permitted under the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws) will take all reasonably necessary action to cause the vacancy created thereby to be filled as soon as practicable by a new designee of the Investors, for so long as the Investors have the right to designate an individual for nomination to the Board under this Agreement.

 

(c)                                   Director Resignation .  Upon the decrease of the Investors’ collective beneficial ownership below 5% of the outstanding shares of Common Stock, the Investors will take all reasonably necessary action to cause the Investor Director to offer to tender their resignation.

 

(d)                                  Observer Rights . For so long as Senja and Hampton collectively beneficially own 5% or more of the outstanding shares of Common Stock, they may collectively elect to designate

 

3



 

one non-voting observer to attend all meetings of the Board and committees of the Board; provided , however , that the observer may be excused from a meeting of the Board or any committee thereof to permit the members of the Board, or committee, as applicable, to act on any matter in which such observer’s participation is not appropriate based upon applicable NYSE rules, regulations or guidance.  The Company will give such observer copies of all notices, minutes, consents, and other materials that it provides to its Board or a committee of the Board, at the same time and in the same manner as provided to the Board or committee of the Board; provided , however , that the observer receiving information pursuant to this Section 2(d)  will comply with the requirements of Section 4 herein.

 

(e)                                   Advance Notification . With respect to an Investor, the Company will not require compliance with any provision of the Amended and Restated Bylaws that requires a stockholder seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at a meeting of stockholders to provide notice (in compliance with form and content requirements) in writing in a timely manner.

 

(f)                                    Indemnification Agreements . The Company will enter into customary indemnification agreements with each of its directors.

 

(g)                                   Notice of Change in Beneficial Ownership .  The Investors agree to give prompt notice to the Company if they cease to beneficially own 5% or more of the outstanding shares of Common Stock.

 

Section 3.  Information and Access .  For so long as the Investors collectively own 5% or more of the outstanding shares of Common Stock, subject to applicable law, the Investors shall have, at reasonable times and upon reasonable notice, full access to all books and records of the Company or any of its Subsidiaries, shall be entitled to review and copy them at its discretion, shall be entitled to inspect the properties and assets of the Company or any of its Subsidiaries and consult with management of the Company and shall be furnished, reasonably promptly following its request therefor, such information concerning the business, properties, contracts, assets, liabilities, personnel and other aspects of the Company or any of its Subsidiaries as reasonably requested by the Investors.

 

Section 4.  Confidentiality .  Each Investor will maintain the confidentiality of any confidential and proprietary information of the Company received under Section 2(a)  of this Agreement, including any information received by any Investor pursuant to Section 2(d)  hereof (“ Proprietary Information ”), using the same standard of care, but in no event less than reasonable care, as it applies to its own confidential information; provided , however , that an Investor may disclose Proprietary Information (a) to any Affiliate, partner, limited partner, member, trustee, investor or related investment fund of such Investor and its and their respective investors, limited partners, directors, employees, agents, professional advisors and consultants, or (b) as may otherwise be required by law, rule, regulation, subpeona, legal process or self-regulatory organization, and further   provided , that (i) such Proprietary Information provided pursuant to clauses (a) and (b)  above is identified prior to disclosure by the Investor to the recipient as requiring confidential treatment, and (ii) the disclosing Investor will be responsible for the acts and omissions related to the Proprietary Information of any Person to whom such Investor discloses Proprietary Information (other than pursuant to clause (b)  above).  For purposes of this

 

4



 

Agreement, Proprietary Information will not include any information (a) that is publicly available (other than as a result of dissemination by such Investor in violation hereof) or a matter of public knowledge generally, (b) that was known to such Investor on a non-confidential basis, without, to such Investor’s actual knowledge, breach of any confidentiality obligations to the Company, prior to its disclosure by the Company under this Agreement, (c) that is or was independently developed or conceived by such Investor without use of the Proprietary Information or (d) that is received by the Investor from a source as to which such Investor has no actual knowledge, was in breach of any confidentiality obligation to the Company.

 

Section 5.  Corporate Opportunities; Other Agreements .

 

(a)                                  To the fullest extent permitted by applicable law, the Company, on behalf of itself and its Subsidiaries, hereby renounces any interest, duty or expectancy of the Company and its Subsidiaries in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to any Investor, any Affiliate of any Investor or any director (or director of any Subsidiary of the Company) designated by any of the foregoing (each an “ Investor Party ”) even if the opportunity is one that the Company or its Subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so and each Investor Party will have no duty to communicate or offer such business opportunity to the Company and to the fullest extent permitted by applicable law, will not be liable to the Company or any of its Subsidiaries for breach of any fiduciary or other duty, as a director or otherwise, by reason of the fact that such Investor Party pursues or acquires such business opportunity, directs such business opportunity to another Person or fails to present such business opportunity, or information regarding such business opportunity, to the Company or its Subsidiaries.

 

(b)                                  Notwithstanding anything in this Agreement to the contrary, each of the Parties acknowledges and agrees that the Investors and their Affiliates have obtained, prior to the date hereof, and are expected to obtain, on and after the date hereof, confidential information from other companies in connection with Persons engaged in businesses that are in similar lines of business or that directly or indirectly compete with the business of the Company and its Subsidiaries and conducted from time to time or as expected to be conducted from time to time. Each of the Parties hereby agrees that none of the Investors nor any of their Affiliates (nor the Investor Director) has any obligation to use any such confidential information in connection with the business, operations, management or other activities of the Company or its Subsidiaries or to furnish to the Company or its Subsidiaries any such confidential information.

 

(c)                                   Any claims against, actions, rights to sue, other remedies or other recourse to or against any Investor or any of their respective Affiliates and the Investor Director for or in connection with the matters in clauses (a) and (b) (including business opportunities and confidential information) of this Section, whether arising in common law or equity or created by rule of law, statute, constitution, contract (including this Agreement) or otherwise, are expressly released and waived by each Party to the fullest extent permitted by Law.

 

(d)                                  The Company will not, without the prior consent of the Investors, amend or repeal Article XII of the Amended and Restated Certificate of Incorporation nor recommend any such action to its stockholders.

 

5



 

(e)                                   The Company will not amend or repeal any provision of the Amended and Restated Certificate of Incorporation or, by means of an amendment effected through actions of the Board, amend the Amended and Restated Bylaws, in either case, if such amendment or repeal is of a provision of the Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws that implements the provisions of this Agreement nor recommend any such action to its stockholders.

 

Section 6.  Representations and Warranties .  Each of the Investors and the Company represents and warrants to each other as stated below; provided that the Investors are not making any representation or warranty with respect to the Company or the other Investor in this Section 6 , and the Company is not making any representation or warranty with respect to the Investors in this Section 6 :

 

(a)                                  The Company has been duly incorporated and is in good standing under the laws of Delaware, and has the corporate power and capacity and is duly qualified to own or lease its property and to carry on its business as now conducted in each jurisdiction in which it owns or leases property or carries on business, except where failure to be so duly qualified has not had or would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the assets, liabilities, financial condition, business or results of operations of the Company.

 

(b)                                  The execution and delivery of this Agreement has been duly and validly authorized by each Investor and the Company.

 

(c)                                   This Agreement has been duly and validly executed and delivered by each Investor and the Company and is a valid and legally binding obligation of each Investor and the Company, enforceable against each of them in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency and other applicable laws affecting creditors’ rights generally and to general principles of equity.

 

(d)                                  Apart from this Agreement and the Investors’ Rights Agreement, dated as of the date hereof, among the Company, Maju Investments (Mauritius) Pte Ltd and CHK Energy Holdings, Inc., there are no stockholders agreements, pooling agreements, voting trusts or other similar agreements with respect to the ownership or voting of any of the shares of the Company.

 

Section 7. Termination .  This Agreement will terminate automatically (without any action by any party hereto) upon the time at which the Investors no longer have the right to designate an individual for nomination to the Board under this Agreement; provided , that the provision in Section 2(c)  and Section 2(g)  will survive such termination.

 

Section 8.  Further Assurances .  At any time or from time to time after the date of this Agreement, the parties 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 such other party may reasonably request in order to evidence or effectuate the consummation of the transactions contemplated hereby and to otherwise carry out the intent of the parties hereunder.

 

6



 

Section 9.  Amendment and Waiver .  Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement will be effective against the Company or any Investor unless such modification, amendment or waiver is approved in writing by the Company and such Investor.  Notwithstanding the foregoing, no amendment will be made or waiver granted in a manner that adversely affects any Investor or its rights hereunder without the prior written consent of such affected party.  The failure of any party to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

 

Section 10.  Entire Agreement .  This Agreement contains the entire agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

 

Section 11.  Successors and Assigns .  Except as otherwise provided herein, this Agreement will bind and inure to the benefit of and be enforceable by the Company and its successors and assigns and each Investor and its successors, Permitted Assigns, heirs and personal representatives.  Subject to compliance with the provisions of this Agreement, (i) each Investor will, at any time and without the consent of any other party hereto, have the right to assign all or part of its rights and obligations under this Agreement to one or more of its Affiliates and (ii) each Investor will, at any time and without the consent of any other party hereto, have the right to assign all or part of its rights and obligations under this Agreement to any Person to whom such Investor Transfers Common Stock in accordance with this Agreement; and provided that an Investor will not be permitted to assign any of its rights under Section 2 if the effect of such assignment would cause a change of control or default under any material debt agreement of the Company.  Upon any such permitted assignment, such assignee will have and be able to exercise and enforce all rights of the assigning party which are assigned to it and, to the extent such rights are assigned, any reference to the assigning Investor will be treated as a reference to the assignee.

 

Section 12.  Severability .  Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

 

Section 13.  Remedies .  Each party hereto will be entitled to enforce its rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in its favor.  The parties hereto agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that each party may in its sole discretion apply to any court of law or equity of competent jurisdiction for specific performance and/or injunctive relief (without posting a bond or other security) in order to enforce or prevent any violation of the provisions of this Agreement.

 

7


 

Section 14.  Notices .  All notices, requests, consents and other communications hereunder to any party will be deemed to be sufficient if contained in a written instrument delivered in person or by email (with a confirmation of receipt or confirmatory copy sent by different means within three business days of such notice), nationally recognized overnight courier or first class registered or certified mail, return receipt requested, postage prepaid, addressed to such party at the address set forth below or at such address or to the attention of such other person as may hereafter be designated in writing by such party to the other parties:

 

if to the Company to:

 

FTS International, Inc.

777 Main Street, Suite 2900

Fort Worth, Texas 76102

Attention: Jennifer L. Keefe

Email: jennifer.keefe@ftsi.com

 

with a copy (which will not constitute notice) to:

 

Jones Day

2727 North Harwood Street

Dallas, Texas 75201

Attention: Charles T. Haag

Email: chaag@jonesday.com

 

if to Senja, to:

 

c/o CCS Trustees Limited

263 Main Street P.O. Box 2196

Road Town Tortola

British Virgin Islands

Attn: Mr. Ong Tiong Sin

Email: richard.ong@rrjcap.com

 

with a copy (which will not constitute notice) to:

 

RRJ Management (S) Pte Ltd,

298 Tiong Bahru Road,

#13-01 Central Plaza,

Singapore 168730

Attn: Mr. Ong Tiong Sin; RRJ Finance

Email: richard.ong@rrjcap.com; rrj_finance@rrjcap.com

 

if to Hampton, to:

 

c/o CCS Trustees Limited

263 Main Street P.O. Box 2196

Road Town Tortola

British Virgin Islands

Attn: Mr. Ong Tiong Sin

Email: richard.ong@rrjcap.com

 

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with a copy (which will not constitute notice) to:

 

RRJ Management (S) Pte Ltd,

298 Tiong Bahru Road,

#13-01 Central Plaza,

Singapore 168730

Attn: Mr. Ong Tiong Sin; RRJ Finance

Email: richard.ong@rrjcap.com; rrj_finance@rrjcap.com

 

All such notices, requests, consents and other communications will be deemed to have been given hereunder when received.

 

Section 15.  Governing Law; Submission to Jurisdiction and Venue .

 

(a)                                  Governing Law .  This Agreement and all claims arising out of or based upon this Agreement or relating to the subject matter hereof will be governed by and construed in accordance with the domestic substantive laws of the State of Delaware without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction.

 

(b)                                  Submission to Jurisdiction and Venue .  Each of the parties, by its execution of this Agreement,  hereby irrevocably submits to the exclusive venue and jurisdiction of the Court of Chancery of the State of Delaware for the purpose of any proceeding arising out of or based upon this Agreement or relating to the subject matter hereof.

 

Section 16.  Descriptive Headings .  The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

 

Section 17.  Conflicting Agreements .  Other than with respect to proxies or powers of attorney that one or more of the Investors may have granted or grant to an Affiliate of such Investor, each Investor represents and warrants that such Investor has not granted and is not a party to any proxy, voting trust or other agreement that conflicts with any provision of this Agreement, and no Investor will grant any proxy or become party to any voting trust or other agreement that conflicts with any provision of this Agreement.

 

Section 18.  Counterparts .  This Agreement may be executed in separate counterparts each of which will be an original and all of which taken together will constitute one and the same agreement.

 

Section 19.  General Interpretive Principles .  When a reference is made in this Agreement to a Section, Schedule or Exhibit such reference will be to a Section of, or a Schedule or Exhibit to, this Agreement unless otherwise indicated.  The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “ include ,” “ includes ” or “ including ” are used in this Agreement, they will be deemed to be followed by the words “ without limitation .”

 

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The words “ hereof ,” “ herein ” and “ hereunder ” and words of similar import when used in this Agreement will refer to this Agreement as a whole (including the Schedules and Exhibits) and not to any particular provision of this Agreement.  All terms defined in this Agreement will have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein.  The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and, except as otherwise expressly provided or unless the context otherwise requires, any noun or pronoun will be deemed to cover all genders.  Any statute, rule, order or regulation defined or referred to in this Agreement or in any agreement or instrument that is referred to in this Agreement will mean such statute, rule, order or regulation as from time to time amended, updated, modified, supplemented or superseded, including by succession of comparable successor statutes, rules, orders or regulations and references to all attachments thereto and instruments incorporated therein.  Where specific language is used to clarify by example a general statement contained herein, such specific language will not be deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates.  The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party.

 

[ Remainder of Page Intentionally Left Blank ]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Investors’ Rights  Agreement as of the day and year first written above.

 

 

FTS INTERNATIONAL, INC.

 

 

 

 

By:

/s/ Michael J. Doss

 

Name: Michael J. Doss

 

Title: Chief Executive Officer

 

 

 

 

 

 

 

SENJA CAPITAL LTD

 

 

 

 

 

 

 

By:

/s/ Ong Tiong Sin

 

 

Name: Ong Tiong Sin

 

 

Title: Director

 

 

 

 

 

 

 

HAMPTON ASSET HOLDING LTD.

 

 

 

 

 

 

 

By:

/s/ Ong Tiong Sin

 

 

Name: Ong Tiong Sin

 

 

Title: Director

 

 

[ Signature Page to Investors’ Rights Agreement ]

 



 

Annex A

 

Corporate Governance Guideline of the Company and the Board

 




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Exhibit 5.1

February 6, 2018

FTS International, Inc.
777 Main Street, Suite 2900
Fort Worth, Texas 76102

        Re:     Registration Statement on Form S-8 Filed by FTS International, Inc.

Ladies and Gentlemen:

        We have acted as counsel for FTS International, Inc., a Delaware corporation (the "Company"), in connection with the FTS International, Inc. 2018 Equity and Incentive Compensation Plan (the "Plan").

        In connection with the opinion expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinion. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that the 2,820,558 shares (the "Shares") of common stock, par value $0.01 per share, of the Company that may be issued or delivered and sold pursuant to the Plan and the authorized forms of award agreements thereunder (the "Award Agreements") will be, when issued or delivered and sold in accordance with the Plan and the Award Agreements, validly issued, fully paid and nonassessable, provided that the consideration for the Shares is at least equal to the stated par value thereof.

        The opinion expressed herein is limited to the General Corporation Law of the State of Delaware, as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction on the opinion expressed herein. In addition, we have assumed that the resolutions authorizing the Company to issue or deliver and sell the Shares pursuant to the Plan and the Award Agreements will be in full force and effect at all times at which the Shares are issued or delivered and sold by the Company, and that the Company will take no action inconsistent with such resolutions. In rendering the opinion above, we have assumed that each award under the Plan will be approved by the Board of Directors of the Company or an authorized committee of the Board of Directors in accordance with the terms of the Plan.

        We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement on Form S-8 filed by the Company to effect the registration of the Shares under the Securities Act of 1933 (the " Act "). In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

  Very truly yours,

 

/s/ Jones Day




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Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

        We have issued our report dated February 27, 2017, with respect to the consolidated financial statements of FTS International, Inc. contained in the Final Prospectus, filed on February 5, 2018, relating to the Registration Statement on Form S-1 (File No. 333-215998), which is incorporated by reference in this Registration Statement on Form S-8. We consent to the incorporation by reference of the aforementioned report in this Registration Statement on Form S-8.

/s/ GRANT THORTON LLP

Dallas, Texas
February 6, 2018




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CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

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Exhibit 99.1

FTS INTERNATIONAL, INC.

2018 EQUITY AND INCENTIVE COMPENSATION PLAN

        1.     Purpose.     The purpose of the 2018 Equity and Incentive Compensation Plan is to attract and retain non-employee Directors, officers and other key employees of the Company and its Subsidiaries and to provide to such persons incentives and rewards for performance.

        2.     Definitions.     As used in this Plan:

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        In the case of a Qualified Performance-Based Award, each Management Objective will be objectively determinable to the extent required under Section 162(m) of the Code, and, unless otherwise determined by the Committee and to the extent consistent with Code Section 162(m), will exclude the effects of certain designated items identified at the time of grant. If the Committee determines that a change in the business, operations, corporate structure or capital structure of the Company, or the manner in which it conducts its business, or other events or circumstances render the Management Objectives unsuitable, the Committee may in its discretion modify such Management Objectives or the related minimum acceptable level of achievement, in whole or in part, as the Committee deems appropriate and equitable, except in the case of a Qualified Performance-Based Award (other than in connection with a Change in Control) where such action would result in the loss of the otherwise available exemption of the award under Section 162(m) of the Code. In such case, the Committee will not make any modification of the Management Objectives or minimum acceptable level of achievement with respect to such Covered Employee.

        (s)   " Market Value per Share " means, as of any particular date, the closing price of a share of Common Stock as reported for that date on the New York Stock Exchange or, if the shares of Common Stock are not then listed on the New York Stock Exchange, on any other national securities exchange on which the shares of Common Stock are listed, or if there are no sales on such date, on the next preceding trading day during which a sale occurred; provided , however , as to any award with a Date of Grant of the Pricing Date, "Market Value per Share" will be equal to the per share price at which the shares of Common Stock are initially offered to the public in connection with the initial public offering of the Company registered on Form S-1 (or any successor form under the Securities Act of 1933, as amended). If there is no regular public trading market for the shares of Common Stock, then the Market Value per Share shall be the fair market value as determined in good faith by the Committee.

        (t)    " Nonstatutory Stock Option " means an Option Right that does not qualify as an Incentive Stock Option.

        (u)   " Optionee " means the optionee named in an Evidence of Award evidencing an outstanding Option Right.

        (v)   " Option Price " means the purchase price payable on exercise of an Option Right.

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        (w)  " Option Right " means the right to purchase shares of Common Stock upon exercise of an award granted pursuant to Section 6 of this Plan.

        (x)   " Participant " means a person who is selected by the Committee to receive benefits under this Plan and who is at the time (i) an officer or other key employee of the Company or any Subsidiary, including a person who has agreed to commence serving in such capacity within 90 days of the Date of Grant, (ii) a person who provides services to the Company or any Subsidiary that are equivalent to those typically provided by an employee (provided that such person satisfies the Form S-8 definition of an "employee"), or (iii) a non-employee Director.

        (y)   " Performance Period " means, in respect of a Cash Incentive Award, Performance Share or Performance Unit, a period of time established pursuant to Section 8 of this Plan within which the Management Objectives relating to such Cash Incentive Award, Performance Share or Performance Unit are to be achieved.

        (z)   " Performance Share " means a bookkeeping entry that records the equivalent of one share of Common Stock awarded pursuant to Section 8 of this Plan.

        (aa) " Performance Unit " means a bookkeeping entry awarded pursuant to Section 8 of this Plan that records a unit equivalent to $1.00 or such other value as is determined by the Committee.

        (bb) " Person " means any individual, entity, or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act).

        (cc) " Plan " means this FTS International, Inc. 2018 Equity and Incentive Compensation Plan, as amended from time to time.

        (dd) " Pricing Date " means the date of the underwriting agreement between the Company and the underwriters managing the initial public offering of the shares of Common Stock pursuant to which the shares of Common Stock are priced for the initial public offering.

        (ee) " Qualified Performance-Based Award " means any award of Restricted Stock Units, Restricted Stock, Performance Shares, Performance Units or any Cash Incentive Award or awards contemplated under Section 9 of this Plan, or portion of such award, to a Covered Employee that is intended to satisfy the requirements for "qualified performance-based compensation" under Section 162(m) of the Code.

        (ff)  " Restricted Stock " means shares of Common Stock granted or sold pursuant to Section 5 of this Plan as to which neither the substantial risk of forfeiture nor the prohibition on transfers has expired.

        (gg) " Restricted Stock Unit " means an award made pursuant to Section 4 of this Plan of the right to receive shares of Common Stock, cash or a combination thereof at the end of a specified period.

        (hh) " Restriction Period " means the period of time during which Restricted Stock Units are subject to restrictions, as provided in Section 4 of this Plan.

         (ii)  " Spread " means the excess of the Market Value per Share on the date when an Option Right or Appreciation Right is exercised over the Option Price or Base Price provided for in the related Option Right or Appreciation Right, respectively.

        (jj)   " Stockholder " means an individual or entity that owns one or more shares of Common Stock.

        (kk) " Subsidiary " means a corporation, company or other entity (i) more than 50 percent of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, or (ii) which does not have outstanding shares or securities (as may be the case in a partnership, joint venture, limited liability company, unincorporated association or other similar entity), but more than 50 percent of whose ownership interest representing the right generally

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to make decisions for such other entity is, now or hereafter, owned or controlled, directly or indirectly, by the Company; provided , however , that for purposes of determining whether any person may be a Participant for purposes of any grant of Incentive Stock Options, "Subsidiary" means any corporation in which at the time the Company owns or controls, directly or indirectly, more than 50 percent of the total combined Voting Power represented by all classes of stock issued by such corporation.

        (ll)   " Voting Power " means, at any time, the combined voting power of the then-outstanding securities entitled to vote generally in the election of Directors in the case of the Company, or members of the board of directors or similar body in the case of another entity.

        3.      Shares Available Under the Plan .

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        4.     Restricted Stock Units.     The Committee may, from time to time and upon such terms and conditions as it may determine, authorize the granting or sale of Restricted Stock Units to Participants. Each such grant or sale may utilize any or all of the authorizations, and will be subject to all of the requirements, contained in the following provisions:

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        5.     Restricted Stock.     The Committee may, from time to time and upon such terms and conditions as it may determine, authorize the grant or sale of Restricted Stock to Participants. Each such grant or sale may utilize any or all of the authorizations, and will be subject to all of the requirements, contained in the following provisions:

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        6.     Option Rights.     The Committee may, from time to time and upon such terms and conditions as it may determine, authorize the granting to Participants of Option Rights. Each such grant may utilize any or all of the authorizations, and will be subject to all of the requirements, contained in the following provisions:

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        7.     Appreciation Rights.     

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        8.     Cash Incentive Awards, Performance Shares and Performance Units.     The Committee may, from time to time and upon such terms and conditions as it may determine, authorize the granting of Cash Incentive Awards, Performance Shares and Performance Units. Each such grant may utilize any or all of the authorizations, and will be subject to all of the requirements, contained in the following provisions:

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        9.     Other Awards.     

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        10.     Administration of this Plan .    

        11.     Adjustments.     The Committee shall make or provide for such adjustments in the numbers of shares of Common Stock covered by outstanding Restricted Stock Units, Restricted Stock, Option Rights, Appreciation Rights, Performance Shares and Performance Units granted hereunder and, if applicable, in the number of shares of Common Stock covered by other awards granted pursuant to Section 9 hereof, in the Option Price and Base Price provided in outstanding Option Rights and Appreciation Rights, respectively, in the kind of shares covered thereby, in Cash Incentive Awards, and in other award terms, as the Committee, in its sole discretion, exercised in good faith, determines is equitably required to prevent dilution or enlargement of the rights of Participants that otherwise would result from (a) any extraordinary cash dividend, stock dividend, stock split, combination of shares, recapitalization or other change in the capital structure of the Company, (b) any merger, consolidation, spin-off, split-off, spin-out, split-up, reorganization, partial or complete liquidation or other distribution of assets, issuance of rights or warrants to purchase securities, or (c) any other corporate transaction or event having an effect similar to any of the foregoing. Moreover, in the event of any such transaction or event or in the event of a Change in Control, the Committee may provide in substitution for any or all outstanding awards under this Plan such alternative consideration (including cash), if any, as it, in good faith, may determine to be equitable in the circumstances and shall require in connection therewith the surrender of all awards so replaced in a manner that complies with Section 409A of the Code. In addition, for each Option Right or Appreciation Right with an Option Price or Base Price, respectively, greater than the consideration offered in connection with any such transaction or event or

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Change in Control, the Committee may in its discretion elect to cancel such Option Right or Appreciation Right without any payment to the Person holding such Option Right or Appreciation Right. The Committee shall also make or provide for such adjustments in the number of shares of Common Stock specified in Section 3 of this Plan as the Committee in its sole discretion, exercised in good faith, determines is appropriate to reflect any transaction or event described in this Section 11 ; provided , however , that any such adjustment to the number specified in Section 3(c) will be made only if and to the extent that such adjustment would not cause any Option Right intended to qualify as an Incentive Stock Option to fail to so qualify.

        12.     Change in Control.     For purposes of this Plan, except as may be otherwise prescribed by the Committee in an Evidence of Award made under this Plan, a "Change in Control" will be deemed to have occurred upon the occurrence (after the Pricing Date) of any of the following events:

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        Notwithstanding the foregoing, a Change in Control will not be deemed to occur solely because any Person acquires beneficial ownership securities of the Company representing 35% or more of the combined voting power of the Company's then outstanding securities as a result of the acquisition of securities of the Company by the Company which reduces the number of securities of the Company outstanding; provided that if after such acquisition by the Company such Person becomes the beneficial owner of additional securities of the Company that increases the percentage of combined voting power of the Company's then outstanding securities beneficially owned by such person, a Change in Control will then occur.

        13.     Detrimental Activity and Recapture Provisions.     Any Evidence of Award may provide for the cancellation or forfeiture of an award or the forfeiture and repayment to the Company of any gain related to an award, or other provisions intended to have a similar effect, upon such terms and conditions as may be determined by the Committee from time to time, if a Participant, either (a) during employment or other service with the Company or a Subsidiary, or (b) within a specified period after termination of such employment or service, engages in any detrimental activity. In addition, notwithstanding anything in this Plan to the contrary, any Evidence of Award may also provide for the cancellation or forfeiture of an award or the forfeiture and repayment to the Company of any gain related to an award, or other provisions intended to have a similar effect, upon such terms and conditions as may be required by the Committee or under Section 10D of the Exchange Act and any applicable rules or regulations promulgated by the Securities and Exchange Commission or any national securities exchange or national securities association on which the shares of Common Stock may be traded.

        14.     Non U.S. Participants.     In order to facilitate the making of any grant or combination of grants under this Plan, the Committee may provide for such special terms for awards to Participants who are foreign nationals or who are employed by the Company or any Subsidiary outside of the United States of America or who provide services to the Company or any Subsidiary under an agreement with a foreign nation or agency, as the Committee may consider necessary or appropriate to accommodate differences in local law, tax policy or custom. Moreover, the Committee may approve such supplements to or amendments, restatements or alternative versions of this Plan (including, without limitation, sub-plans) as it may consider necessary or appropriate for such purposes, without thereby affecting the terms of this Plan as in effect for any other purpose, and the secretary or other appropriate officer of the Company may certify any such document as having been approved and adopted in the same manner as this Plan. No such special terms, supplements, amendments or restatements, however, will include any provisions that are inconsistent with the terms of this Plan as then in effect unless this Plan could have been amended to eliminate such inconsistency without further approval by the Stockholders.

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        15.     Transferability .    

        16.     Withholding Taxes.     To the extent that the Company is required to withhold federal, state, local or foreign taxes or other amounts in connection with any payment made or benefit realized by a Participant or other Person under this Plan, and the amounts available to the Company for such withholding are insufficient, it will be a condition to the receipt of such payment or the realization of such benefit that the Participant or such other Person make arrangements satisfactory to the Company for payment of the balance of such taxes or other amounts required to be withheld, which arrangements (in the discretion of the Committee) may include relinquishment of a portion of such benefit. If a Participant's benefit is to be received in the form of shares of Common Stock, then, unless otherwise determined by the Committee, the Company will withhold shares of Common Stock having a value equal to the amount required to be withheld. Notwithstanding the foregoing, when a Participant is required to pay the Company an amount required to be withheld under applicable income, employment, tax or other laws, the Participant may elect, if permitted by the Committee in its discretion, to satisfy the obligation, in whole or in part, by having withheld, from the shares required to be delivered to the Participant, shares of Common Stock having a value equal to the amount required to be withheld or by delivering to the Company other shares of Common Stock held by such Participant. The shares used for tax or other withholding will be valued at an amount equal to the market value of such shares of Common Stock on the date the benefit is to be included in Participant's income. In no event will the market value of the shares of Common Stock to be withheld and delivered pursuant to this Section to satisfy applicable withholding taxes or other amounts in connection with the benefit exceed the minimum amount required to be withheld, unless (i) an additional amount can be withheld and not result in adverse accounting consequences and (ii) is permitted by the Committee. Participants will also make such arrangements as the Company may require for the payment of any withholding tax or other obligation that may arise in connection with the disposition of shares of Common Stock acquired upon the exercise of Option Rights.

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        17.     Compliance with Section 409A of the Code .    

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        18.     Amendments .    

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        19.     Governing Law.     This Plan and all grants and awards and actions taken hereunder will be governed by and construed in accordance with the internal substantive laws of the State of Delaware.

        20.     Effective Date/Termination.     This Plan will be effective as of the Effective Date. However, no grants will be made under this Plan prior to the Pricing Date. No grant will be made under this Plan after the tenth anniversary of the Effective Date, but all grants made on or prior to such date will continue in effect thereafter subject to the terms thereof and of this Plan.

        21.     Miscellaneous Provisions .    

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        22.     Stock-Based Awards in Substitution for Option Rights or Awards Granted by Other Company.     Notwithstanding anything in this Plan to the contrary:

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FTS INTERNATIONAL, INC. 2018 EQUITY AND INCENTIVE COMPENSATION PLAN

Exhibit 99.2

 

FTS INTERNATIONAL, INC.

 

2018 EQUITY AND INCENTIVE COMPENSATION PLAN

 

RESTRICTED STOCK UNIT AGREEMENT

 

This AGREEMENT (this “ Agreement ”) is made as of February 6, 2018 (the “ Date of Grant ”), by and between FTS International, Inc., a Delaware corporation (the “ Company ”), and [ · ] (the “ Grantee ”).

 

1.                                       Certain Definitions .  Capitalized terms used, but not otherwise defined, in this Agreement will have the meanings given to such terms in the Company’s 2018 Equity and Incentive Compensation Plan (the “ Plan ”).

 

2.                                       Grant of RSUs .  Subject to and upon the terms, conditions and restrictions set forth in this Agreement and in the Plan, the Company hereby grants to the Grantee [ · ] Restricted Stock Units (the “ RSUs ”).  Each RSU shall represent the right of the Grantee to receive one share of Common Stock subject to and upon the terms and conditions of this Agreement.

 

3.                                       Restrictions on Transfer of RSUs .  Neither the RSUs evidenced hereby nor any interest therein or in the shares of Common Stock underlying such RSUs shall be transferable prior to payment to the Grantee pursuant to Section 7 hereof, other than as described in Section 15 of the Plan.

 

4.                                       Vesting of RSUs .  Subject to the terms and conditions of Sections 5 and 6 hereof, the RSUs covered by this Agreement shall become nonforfeitable and payable to the Grantee pursuant to Section 7 hereof with respect to 25% of the RSUs on the first anniversary of the Date of Grant, 25% of the RSUs on the second anniversary of the Date of Grant, 25% of the RSUs on the third anniversary of the Date of Grant, and 25% of the RSUs on the fourth anniversary of the Date of Grant (each such date, a “ Vesting Date ”), if the Grantee remains in the continuous employ of the Company or any Subsidiary as of each such Vesting Date.

 

5.                                       Accelerated Vesting of RSUs .  Notwithstanding the provisions of Section 4 hereof, the RSUs covered by this Agreement will become nonforfeitable and payable to the Grantee pursuant to Section 7 hereof upon the occurrence of any of the following events at a time when the RSUs have not been forfeited (to the extent the RSUs have not previously become nonforfeitable) as set forth below.

 

(a)                                  All of the RSUs shall become nonforfeitable and payable to the Grantee pursuant to Section 7 hereof if the Grantee should die, become Disabled, is terminated without Cause or the Grantee terminates employment for Good Reason prior to the final Vesting Date while the Grantee is continuously employed by the Company or any of its Subsidiaries.

 

(b)                                  In the event of a Change in Control that occurs prior to the final Vesting Date, the RSUs shall become nonforfeitable and payable as follows:

 

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(i)                                      The RSUs will become nonforfeitable and payable to the Grantee pursuant to Section 7 hereof, except to the extent that a Replacement Award is provided to the Grantee to continue, replace or assume the RSUs covered by this Agreement (the “ Replaced Award ”).

 

(ii)                                   If, after receiving a Replacement Award, the Grantee experiences a termination of employment with the Company or a Subsidiary (or any of their successors) (as applicable, the “ Successor ”) by reason of a termination by the Successor without Cause or by the Grantee for Good Reason, in each case within a period of two years after the Change in Control and during the remaining vesting period for the Replacement Award, the Replacement Award shall become nonforfeitable and payable with respect to the time-based restricted stock units covered by such Replacement Award upon such termination.

 

(iii)                                If a Replacement Award is provided, notwithstanding anything in this Agreement to the contrary, any outstanding RSUs that at the time of the Change in Control are not subject to a “substantial risk of forfeiture” (within the meaning of Section 409A of the Code) will be deemed to be nonforfeitable at the time of such Change in Control.

 

(c)                                   For purposes of this Agreement, the following definitions apply:

 

(i)                                      Cause ” shall mean (A) the willful and continued failure of Grantee to perform his material job duties with the Company or one of its Subsidiaries (other than any such failure resulting from becoming Disabled), after a written demand for substantial performance is delivered to Grantee by the Company which specifically identifies the manner in which the Company believes that Grantee has not substantially performed Grantee’s duties and Grantee has had an opportunity for 30 days to cure such failure after receipt of such written demand; (B) engaging in an act of fraud, embezzlement, misappropriation or theft which results in damage to the Company or any of its Subsidiaries; (C) conviction of Grantee of, or Grantee pleading guilty or nolo contendere to, a felony (other than a violation of a motor vehicle or moving violation law) or a misdemeanor if such misdemeanor (1) materially damages the Company or any of its Subsidiaries or (2) involves the commission of a criminal act against the Company or any of its Subsidiaries; or (D) the breach by Grantee of any material provision of, or inaccuracy in any material respect of any representation made by Grantee in, the Company’s policies that is not cured within 30 days of written notice from the Company setting forth with reasonable particularity such breach or inaccuracy, provided that, if such breach or inaccuracy is not capable of being cured within 30 days after receipt of such notice, Grantee shall not be entitled to such cure period.

 

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(ii)                                   Change in Control ” shall have the meaning set forth in Section 12 of the Plan, except that a Change in Control shall not be deemed to have occurred if either (A) Temasek Holdings (Private) Limited and each of its Affiliates (but not including any of its portfolio companies) or (B) Chesapeake Energy Corporation and each of its controlled Affiliates become, or continue to be, the beneficial owner of securities of the Company representing 35% or more of the combined voting power of the Company’s then outstanding securities.

 

(iii)                                Disabled ” shall have the meaning set forth under applicable state or federal law, and no reasonable accommodation can be provided without undue hardship to the Company.

 

(iv)                               Good Reason ” shall mean, without the Grantee’s consent: (A) a material reduction in Grantee’s base salary, other than pursuant to a reduction applicable to all executives or employees of the Company generally; (B) a move of Grantee’s primary place of work more than 50 miles from its current location; or (C) a material diminution in Grantee’s normal duties and responsibilities, including, but not limited to, the assignment without Grantee’s consent of any diminished duties and responsibilities which are inconsistent with Grantee’s positions, duties and responsibilities with the Company and its Subsidiaries on the date of this Agreement, or a materially adverse change in Grantee’s reporting responsibilities or titles as in effect on the date of this Agreement, or any removal of Grantee from or any failure to re-elect Grantee to any of such positions, except in connection with the termination of the Grantee’s employment for Cause or upon death, the Grantee becoming Disabled, voluntary resignation or other termination of employment by the Grantee without Good Reason;

 

provided that, in each case, Grantee must provide at least 30 days’ prior written notice of termination for Good Reason within 30 days after the event that Grantee claims constitutes Good Reason, and the Company shall have the opportunity to cure such circumstances within 30 days of receipt of such notice.  For the avoidance of doubt, Good Reason shall not exist hereunder unless and until the 30 day cure period following receipt by the Company of Grantee’s written notice expires and the Company shall not have cured such circumstances, and in such case Grantee’s employment shall terminate for Good Reason on the day following expiration of such 30 day notice period.

 

(v)                                  Replacement Award ” shall mean an award (1) of the same type (e.g., time-based restricted stock units) as the Replaced Award, (2) that has a value at least equal to the value of the Replaced Award, (3) that relates to publicly traded equity securities of the Company or its successor in the Change in Control or another entity that is affiliated with the Company or its successor following the Change in Control, (4) if the Grantee holding the Replaced Award is subject to U.S. federal income tax under the Code,

 

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the tax consequences of which to such Grantee under the Code are not less favorable to such Grantee than the tax consequences of the Replaced Award, and (5) the other terms and conditions of which are not less favorable to the Grantee holding the Replaced Award than the terms and conditions of the Replaced Award (including the provisions that would apply in the event of a subsequent Change in Control). A Replacement Award may be granted only to the extent it does not result in the Replaced Award or Replacement Award failing to comply with or be exempt from Section 409A of the Code.  Without limiting the generality of the foregoing, the Replacement Award may take the form of a continuation of the Replaced Award if the requirements of the two preceding sentences are satisfied.  The determination of whether the conditions of this Section 5(c)(v)  are satisfied will be made by the Committee, as constituted immediately before the Change in Control, in its sole discretion.

 

6.                                       Forfeiture of Awards .  Except to the extent the RSUs covered by this Agreement have become nonforfeitable pursuant to Sections 4 or 5 hereof, the RSUs covered by this Agreement shall be forfeited automatically and without further notice, and shall no longer be considered covered by this Agreement, on the date that the Grantee ceases to be an employee of the Company or any Subsidiary.

 

7.                                       Form and Time of Payment of RSUs .  Payment in respect of the RSUs, after and to the extent they have become nonforfeitable, shall be made in the form of shares of Common Stock.  Payment shall be made within ten days following the date that the RSUs become nonforfeitable pursuant to Section 4 or 5 hereof.  Elections by the Grantee to defer receipt of the shares of Common Stock when the RSUs become nonforfeitable beyond the date of payment provided herein may be permitted in the discretion of the Committee pursuant to procedures established by the Committee in compliance with the requirements of Section 409A of the Code.

 

8.                                       Dividend Equivalents; Other Rights .

 

(a)                                  The Grantee shall have no rights of ownership in the shares of Common Stock underlying the RSUs and no right to vote the shares of Common Stock underlying the RSUs until the date on which the shares of Common Stock underlying the RSUs are issued or transferred to the Grantee pursuant to Section 7 hereof.

 

(b)                                  From and after the Date of Grant and until the earlier of (i) the time when the RSUs become nonforfeitable and are paid in accordance with Section 7 hereof or (ii) the time when the Grantee’s right to receive shares of Common Stock in payment of the RSUs is forfeited in accordance with Section 6 hereof, on the date that the Company pays a cash dividend (if any) to holders of shares of Common Stock generally, the Grantee shall be paid cash per RSU equal to the amount of such dividend.

 

(c)                                   The obligations of the Company under this Agreement will be merely that of an unfunded and unsecured promise of the Company to deliver shares of Common Stock in the future, and the rights of the Grantee will be no greater than that of an

 

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unsecured general creditor. No assets of the Company will be held or set aside as security for the obligations of the Company under this Agreement.

 

9.                                       No Employment Contract .  Nothing contained in this Agreement shall confer upon the Grantee any right to be employed or remain employed by the Company or any Subsidiary, nor limit or affect in any manner the right of the Company or any Subsidiary to terminate the employment or adjust the compensation of the Grantee.

 

10.                                Adjustments .  The number of shares of Common Stock issuable for each RSU and the other terms and conditions of the grant evidenced by this Agreement are subject to adjustment as provided in Section 11 of the Plan.

 

11.                                Withholding Taxes .  To the extent that the Company is required to withhold federal, state, local or foreign taxes or other amounts in connection with the delivery to the Grantee of shares of Common Stock or any other payment to the Grantee or any other payment or vesting event under this Agreement, it shall be a condition to the obligation of the Company to make any such delivery or payment that the Grantee make payment of the balance of such taxes or other amounts required to be withheld.  The withholding requirement will be satisfied by retention by the Company of a portion of the shares of Common Stock or cash to be delivered to the Grantee or, subject to approval by the Committee and upon Grantee’s election, by delivering to the Company other shares of Common Stock held by the Grantee.  Any shares so retained shall be credited against such withholding requirement at the Market Value per Share on the date of such delivery.  In no event will the Market Value per Share to be withheld and/or delivered pursuant to this Section 11 to satisfy applicable withholding taxes exceed the minimum amount of taxes required to be withheld, unless (a) an additional amount can be withheld and not result in adverse accounting consequences and (b) it is permitted by the Committee for a Grantee who is an “executive officer” under Item 401(b) of Regulation S-K under the Exchange Act.

 

12.                                Compliance With Law .  The Company shall make reasonable efforts to comply with all applicable federal and state securities laws; provided , however , notwithstanding any other provision of the Plan and this Agreement, the Company shall not be obligated to issue any of the shares of Common Stock pursuant to this Agreement if the issuance thereof would result in violation of any such law.

 

13.                                Relation to Other Benefits .  Any economic or other benefit to the Grantee under this Agreement or the Plan shall not be taken into account in determining any benefits to which the Grantee may be entitled under any profit-sharing, retirement or other benefit or compensation plan maintained by the Company or any Subsidiary and shall not affect the amount of any life insurance coverage available to any beneficiary under any life insurance plan covering employees of the Company or any Subsidiary.

 

14.                                Amendments .  Any amendment to the Plan shall be deemed to be an amendment to this Agreement to the extent that the amendment is applicable hereto; provided , however , that (a) no amendment shall adversely affect the rights of the Grantee under this Agreement without the Grantee’s written consent, and (b) the Grantee’s consent shall not be required to an amendment that is deemed necessary by the Company to ensure compliance with Section 409A of the Code or Section 10D of the Exchange Act and any applicable rules or regulations

 

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promulgated by the Securities Exchange Commission or any national securities exchange or national securities association on which the Common Stock may be traded, including as a result of the implementation of any recoupment policy the Company adopts to comply with the requirements set forth in Section 10D of the Exchange Act.

 

15.                                Severability .  In the event that one or more of the provisions of this Agreement shall be invalidated for any reason by a court of competent jurisdiction, any provision so invalidated shall be deemed to be separable from the other provisions hereof, and the remaining provisions hereof shall continue to be valid and fully enforceable.

 

16.                                Relation to Plan .  This Agreement is subject to the terms and conditions of the Plan.  In the event of any inconsistency between the provisions of this Agreement and the Plan, the Plan shall govern.  The Committee acting pursuant to the Plan, as constituted from time to time, shall, except as expressly provided otherwise herein or in the Plan, have the right to determine any questions which arise in connection with this Agreement.

 

17.                                Successors and Assigns .  Without limiting Section 3 hereof, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors, administrators, heirs, legal representatives and assigns of the Grantee, and the successors and assigns of the Company.

 

18.                                Governing Law .  This Agreement shall be governed by and construed in accordance with the internal substantive laws of the State of Delaware, without giving effect to any principle of law that would result in the application of the law of any other jurisdiction.

 

19.                                Notices . All notices, demands and other communications required or permitted hereunder or designated to be given with respect to the rights or interests covered by this Agreement shall be deemed to have been properly given or delivered when delivered personally or sent by certified or registered mail, return receipt requested, U.S. mail or reputable overnight carrier, with full postage prepaid and addressed to the parties as follows:

 

If to the Company, at:

777 Main Street, Suite 2900

 

Fort Worth, TX 76102

 

Attention: General Counsel

 

 

If to Grantee, at:

Grantee’s last known address reflected on the Payroll records of the Company

 

The Company may change the above designated address by notice to the Grantee.  The Grantee will maintain a current address with the payroll records of the Company.

 

20.                                Electronic Delivery .  The Company may, in its sole discretion, deliver any documents related to the RSUs and the Grantee’s participation in the Plan, or future awards that may be granted under the Plan, by electronic means or request the Grantee’s consent to participate in the Plan by electronic means.  The Grantee hereby consents to receive such documents by electronic delivery and, if requested, agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.

 

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21.                                No Right to Future Awards .  The grant of the RSUs under this Agreement to the Grantee is a voluntary, discretionary award being made on a one-time basis and it does not constitute a commitment to make any future awards.

 

22.                                Other Agreements .  In connection with the delivery to the Grantee of shares of Common Stock or any other payment to the Grantee or any other payment or vesting event under this Agreement, it shall be a condition to the obligation of the Company to make any such delivery or payment that the Grantee execute a (a) non-competition agreement in substantially the form required by the Company for other Grantees receiving delivery or payment under the Plan and (b) lock-up agreement restricting sales and other transactions with respect to shares of Common Stock received under this Agreement for a period of one year after the Vesting Date.

 

23.                                Compliance With Section 409A of the Code .  To the extent applicable, it is intended that any amounts payable under this Agreement and the Plan, and the Company’s and the Grantee’s exercise of authority or discretion hereunder, be exempt from or comply with the provisions of Section 409A of the Code so as to not subject the Grantee to the payment of the additional tax, interest and any tax penalty which may be imposed under Section 409A of the Code.  In furtherance of this intent, to the extent that any provision hereof would result in the Grantee being subject to payment of the additional tax, interest and tax penalty under Section 409A of the Code, the parties agree to amend this Agreement in order to bring this Agreement into compliance with Section 409A of the Code; and thereafter interpret its provisions in a manner that complies with Section 409A of the Code.  Each payment under this Agreement shall be considered a separate payment and not one of a series of payments for purposes of Section 409A of the Code.  Notwithstanding the foregoing, no particular tax result for the Grantee with respect to any income recognized by the Grantee in connection with this Agreement is guaranteed, and the Grantee shall be responsible for any taxes, penalties and interest imposed on the Grantee under or as a result of Section 409A of the Code in connection with this Agreement.

 

24.                                Interpretation .  Any reference in this Agreement to Section 409A of the Code will also include any proposed, temporary or final regulations, or any other guidance, promulgated with respect to Section 409A of the Code by the U.S. Department of the Treasury or the Internal Revenue Service.  Except as expressly provided in this Agreement, capitalized terms used herein will have the meaning ascribed to such terms in the Plan.

 

25.                                Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.

 

[SIGNATURES ON FOLLOWING PAGE]

 

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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on its behalf by its duly authorized officer and the Grantee has executed this Agreement, as of the Date of Grant first written above.

 

 

FTS INTERNATIONAL, INC.

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

 

GRANTEE’S SIGNATURE

 

 

 

 

Print Name:

 

 

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