Exhibit 1.1
[ ] Shares
PIVOTAL SOFTWARE, INC.
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
[ ], 2018
[ ], 2018
Morgan Stanley & Co. LLC
Goldman Sachs & Co. LLC
c/o
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
c/o
Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
Ladies and Gentlemen:
Pivotal Software, Inc., a Delaware corporation (the “
Company
”) and an indirect subsidiary of Dell Inc., a Delaware corporation (“
Dell
”), proposes to issue and sell to the several Underwriters named in Schedule I hereto (the “
Underwriters
”), for whom Morgan Stanley & Co. LLC (“
Morgan Stanley
”) and Goldman Sachs & Co. LLC (“
Goldman Sachs
” and together with Morgan Stanley, the “
Representatives
”) are acting as Representatives, and GE International Holdings B.V., a stockholder of the Company (the “
Selling Stockholder
”), proposes to sell to the several Underwriters, an aggregate of [ ] shares of the Company’s Class A Common Stock (as defined below) (the “
Firm Shares
”), of which [ ] shares are to be issued and sold by the Company and [ ] shares are to be sold by the Selling Stockholder. The Company and the Selling Stockholder are hereinafter sometimes collectively referred to as the “
Sellers
.”
The Company also proposes to issue and sell to the several Underwriters not more than an additional [ ] shares of its Class A Common Stock (the “
Additional Shares
”) if and to the extent that you, as Representatives, shall have determined to exercise, on behalf of the Underwriters, the right to purchase such shares of Class A Common Stock granted to the Underwriters in Section 4 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the “
Shares
.” The shares of Class A Common Stock, par value $0.01 per share, of the Company are hereinafter referred to as the “
Class A
Common Stock
.” The shares of Class B Common Stock, par value $0.01 per share, of the Company are hereinafter referred to as the “
Class B
Common Stock
.” The Class A Common Stock and the Class B Common Stock are hereinafter collectively referred to as the “
Common Stock
.”
The Company has filed with the Securities and Exchange Commission (the “
Commission
”) a registration statement, including a prospectus, relating to the Shares. The registration statement as amended at the time it becomes effective, including the information (if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended (the “
Securities Act
”), is hereinafter referred to as the “
Registration Statement
”; the prospectus in the form first used to confirm sales of the Shares (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “
Prospectus
.” If the Company has filed an abbreviated registration statement to register additional shares of Class A Common Stock pursuant to Rule 462(b) under the Securities Act (the “
Rule 462 Registration Statement
”), then any reference herein to the term “
Registration Statement
” shall be deemed to include such Rule 462 Registration Statement.
For purposes of this Underwriting Agreement (this “
Agreement
”), “
free writing prospectus
” has the meaning set forth in Rule 405 under the Securities Act, “
Time of Sale Prospectus
” means the preliminary prospectus contained in the Registration Statement at the time of its effectiveness together with the documents and pricing information set forth in Schedule II hereto, and “
broadly available road show
” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof. The Company agrees and confirms that references to “affiliates” of Morgan Stanley that appear in this Agreement shall be understood to include Mitsubishi UFJ Morgan Stanley Securities Co., Ltd.
1.
Representations and Warranties of the Company
. The Company represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the Company’s knowledge, threatened by the Commission.
(b) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain, as of the date of such amendment or supplement, 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, (ii) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will, as of the date of such amendment or supplement, comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 6 hereof), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each broadly available road show, if any, when considered together with the
2
Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus, as of its date, does not contain and, as amended or supplemented, if applicable, will not contain, as of its date, as of the Closing Date and as of any Option Closing Date (as defined in Section 4 hereof), any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except, in each case, that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon (A) information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein or (B) information relating to Dell furnished to the Company in writing by or on behalf of Dell expressly for use therein (the
“Dell Information
”).
(c) The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or, if filed after the effective date of this Agreement, will comply, when filed, in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, each furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own or lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction (to the extent the concept of good standing or an equivalent concept is applicable in such jurisdiction) in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) Each subsidiary of the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own or
3
lease its property and to conduct its business as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction (to the extent the concept of good standing or an equivalent concept is applicable in such jurisdiction) in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid and non-assessable and are owned directly by the Company, free and clear of all liens, encumbrances, equities or claims.
(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) As of the Closing Date, the authorized capital stock of the Company will conform as to legal matters to the description thereof contained in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(h) The shares of Common Stock (including the Shares to be sold by the Selling Stockholder) outstanding prior to the issuance of the Shares to be sold by the Company have been duly authorized and are validly issued, fully paid and non-assessable.
(i) The Shares to be sold by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive or similar rights that have not been validly waived.
(j) With respect to the equity awards granted pursuant to the stock-based compensation plans of the Company and its subsidiaries (the “
Company Equity Plans
”), (i) each grant of an equity award was duly authorized no later than the date on which the grant of such equity award was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, and (ii) each such grant was made in accordance with the terms of the Company Equity Plans, and all applicable laws and regulatory rules or requirements, including all applicable federal securities laws.
(k) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement will not contravene any provision of (i) applicable law, (ii) the certificate of incorporation
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or bylaws of the Company (iii) any agreement to which the Company or any of its subsidiaries is a party or to which any of the property or assets of the Company or any of its subsidiaries is subject, (iv) any other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or (v) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of its subsidiaries, except that in the case of clauses (i), (iii), (iv) and (v) above as would not, individually or in the aggregate, have a material adverse effect on the Company or on the power and ability of the Company to perform its obligations under this Agreement; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, except such as have been obtained or waived or as may be required by the securities or Blue Sky laws of the various states or foreign jurisdictions or the rules and regulations of the Financial Industry Regulatory Authority in connection with the offer and sale of the Shares.
(l) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus.
(m) The Company is not (i) in violation of its certificate of incorporation or bylaws; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company is subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(n) There are no legal or governmental proceedings pending or, to the Company’s knowledge, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject (i) other than proceedings accurately described in all material respects in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not reasonably be likely to have a material adverse effect on the Company and its subsidiaries, taken as a whole, or a material adverse effect on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in the Registration
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Statement or the Prospectus and are not so described in all material respects; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described in all material respects or filed as required.
(o) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.
(p) The Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(q) The Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“
Environmental Laws
”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, reasonably be likely to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(r) There are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third parties) which would, individually or in the aggregate, reasonably be likely to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(s) Neither the Company nor any officer, director, subsidiary or controlled affiliate of the Company, nor, to the Company’s knowledge, any agent, distributor or representative of the Company, any of its subsidiaries or any of its controlled affiliates has any reason to believe that the Company or any of the foregoing persons or entities has taken any action in violation of, or which may cause the Company or any of its subsidiaries to be in violation of, any applicable U.S. law governing imports into or exports from the United States in connection with the Company’s products, including without limitation: any executive orders or regulations issued with respect to the laws referred to in this Section 1(r), the
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Arms Export Control Act (22 U.S.C.A. § 2278), the Export Administration Act (50 U.S.C. App. §§ 2401-2420), the International Traffic in Arms Regulations (22 CFR 120-130), the Export Administration Regulations (15 CFR 730 et seq.), the Customs Laws of the United States (19 U.S.C. § 1 et seq.), the International Emergency Economic Powers Act (50 U.S.C. § 1701-1706), or any other export control regulations issued by the agencies listed in Part 730 of the Export Administration Regulations. To the Company’s knowledge, there has never been a claim or charge made, investigation undertaken, violation found, or settlement of any enforcement action under any of the laws referred to in this Section 1(r) by any governmental entity with respect to matters arising under such laws against the Company, any of its subsidiaries, or against the agents, distributors or representative of any of the foregoing in connection with their relationship with the Company. The Company has maintained a compliance program appropriate to the requirements of the aforementioned laws.
(t) Except as otherwise have been validly waived or complied with in connection with the issuance and sale of the Shares contemplated hereby and as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Shares registered pursuant to the Registration Statement.
(u) (i) None of the Company or its subsidiaries or its controlled affiliates, or any director or officer thereof, or, to the Company’s knowledge, any employee, agent or representative of the Company or of any of its subsidiaries or controlled affiliates, has taken any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any government official (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) (“
Government Official
”) in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (ii) the Company and its subsidiaries and controlled affiliates have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws; and (iii) neither the Company nor its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with all applicable financial
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recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency having jurisdiction over the Company or any of its subsidiaries (collectively, the “
Anti-Money Laundering Laws
”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the Company’s knowledge, threatened.
(w) (i) None of the Company, any of its subsidiaries, or any director or officer thereof, or, to the Company’s knowledge, any employee, agent, controlled affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“
Person
”) that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“
OFAC
”) , the United Nations Security Council (“
UNSC
”), the European Union (“
EU
”), Her Majesty’s Treasury (“
HMT
”), or other relevant sanctions authority (collectively, “
Sanctions
”), or
(B) located, organized or resident in a country or territory that is the subject of comprehensive territorial Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person, or in any
8
country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(x) Subsequent to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the Company and its subsidiaries have not incurred any material liability or obligation, direct or contingent, nor entered into any material transaction; (ii) the Company has not purchased any of its outstanding capital stock, other than from its employees or other service-providers in connection with the termination of their service pursuant to the terms of the equity compensation plans or agreements described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock other than ordinary and customary dividends; and (iii) there has not been any material change in the capital stock (other than the exercise or settlement or equity awards or grants or forfeiture of equity awards outstanding as of such respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, in each case granted pursuant to the equity compensation plans described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus), short-term debt or long-term debt of the Company and its subsidiaries, except in each case as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(y) The Company and its subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title to all personal property (other than intellectual property, which is addressed exclusively in Section 1(y) hereof) owned by them which is material to the business of the Company and its subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries, in each case except as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(z) Except for specific matters the Company is aware of that are described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company and its subsidiaries own or possess or have the right to use, or can acquire on commercially reasonable terms, adequate rights to use all inventions, patents, trademarks, service marks, trade names, domain names, copyrights, licenses, technology, know-how, trade secrets and other intellectual
9
property and proprietary or confidential information, systems or procedures (including all registrations and applications by the Company and its subsidiaries for registration of any of the foregoing) (collectively, “
Intellectual Property
”) necessary for or material to the conduct of their respective businesses as currently conducted and as proposed to be conducted by them as described in each of the Registration Statement, Time of Sale Prospectus and the Prospectus. Except as would not, individually or in the aggregate, reasonably be likely to have a material adverse effect on the Company and its subsidiaries, taken as a whole, the conduct of the respective businesses of the Company and its subsidiaries does not infringe, misappropriate or otherwise violate any Intellectual Property of others. Except as would not, individually or in the aggregate, reasonably be likely to have a material adverse effect on the Company and its subsidiaries, taken as a whole, there is no pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim (i) challenging the Company’s or any subsidiary of the Company’s rights in or to, or alleging the violation by the Company or any subsidiary of any of the terms of, any of their Intellectual Property; (ii) alleging that the Company or any of its subsidiaries has infringed, misappropriated or otherwise violated or conflicted with any Intellectual Property of any third party; or (iii) challenging the validity, scope or enforceability of any Intellectual Property owned by or exclusively licensed to the Company or any of its subsidiaries. Except as would not, individually or in the aggregate, reasonably be likely to have a material adverse effect on the Company and its subsidiaries, taken as a whole, all Intellectual Property owned by the Company or its subsidiaries is owned solely by the Company or its subsidiaries, and is owned free and clear of all options, licenses, liens, encumbrances and defects (except for non-exclusive licenses granted to third parties in the ordinary course of business consistent with past practice). To the Company’s knowledge, no third party has infringed, misappropriated or otherwise violated any Intellectual Property owned by or exclusively licensed to the Company or any of its subsidiaries. The Company and its subsidiaries have taken reasonable steps in accordance with normal industry practice to maintain the confidentiality of all Intellectual Property, the value of which to the Company or any of its subsidiaries is contingent upon maintaining the confidentiality thereof. All founders, current and former employees, contractors and consultants of the Company or any subsidiary of the Company and other parties involved in the development of material Intellectual Property for the Company or any subsidiary of the Company have signed confidentiality and invention assignment agreements with the Company or such subsidiary of the Company, as applicable, pursuant to which the Company or such subsidiary of the Company, as applicable, either (x) has obtained ownership of and is the exclusive owner of such Intellectual Property, or (y) has obtained a valid right to exploit such Intellectual Property, sufficient for the conduct of its business as currently conducted and as proposed to be conducted by it as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(aa) Except as would not, individually or in the aggregate, reasonably be expected to have a material adverse effect, (1) the Company and its subsidiaries have used all software (including source code) and other materials
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that are distributed under a “free,” “open source,” or similar licensing model or under a license which, by its terms, (A) does not prohibit licensees of such software from licensing or otherwise distributing such software in source code form, (B) does not prohibit licensees of such software from making modifications thereof, and (C) does not require a royalty or other payment for the licensing or other distribution, or the modification, of such software (other than a reasonable charge to compensate the provider for the cost of providing a copy thereof), including any software governed under the Apache License, GNU General Public License, GNU Lesser General Public License, GNU Affero General Public License, New BSD License, MIT License, Common Public License and other licenses approved as Open Source licenses under the Open Source Definition of the Open Source Initiative (“
Open Source Materials
”), in compliance in all material respects with all license terms applicable to such Open Source Materials, and (2) none of the Company’s proprietary internally-developed software or other internally-developed technology (such software and technology, “
Company Proprietary Tools
”), incorporates any Open Source Material in a manner that requires or has required (i) the Company or any of its subsidiaries to permit reverse engineering of any Company Proprietary Tools of the Company or any of its subsidiaries or (ii) any Company Proprietary Tools of the Company or any of its subsidiaries to be (A) disclosed or distributed in source code form, (B) licensed for the purpose of making derivative works, or (C) redistributed at no charge or minimal charge.
(bb) No material labor dispute with the employees of the Company or any of its subsidiaries exists or, to the Company’s knowledge, is imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, service providers, manufacturers or contractors that could have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(cc) The Company and each of its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as the Company reasonably believes are prudent and customary in the businesses in which they are engaged; neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, except as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(dd) The Company and its subsidiaries, taken as a whole, possess all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, except where the failure to obtain such certificates, authorizations and permits
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would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole, and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, individually or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(ee) The Company and each of its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles as applied in the United States (“
GAAP
”) and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting, as defined in Rule 13a-15(f) under the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”), (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(ff) Except as described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company has not sold, issued or distributed any shares of Common Stock during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other than shares issued pursuant to employee benefit plans, qualified stock option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.
(gg) The Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually or in the aggregate, have a material adverse effect) and have paid all taxes required to be paid thereon (except for cases in which the failure to file or pay would not have a material adverse effect, or except as currently being contested in good faith and for which reserves required by GAAP have been created in the financial statements of the Company), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had (nor does the Company nor any of its subsidiaries have any notice or knowledge of any tax deficiency which could reasonably be
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expected to be determined adversely to the Company or any of its subsidiaries and which could reasonably be expected to have) a material adverse effect.
(hh) The consolidated financial statements of the Company included in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus present fairly in all material respects the consolidated financial position of the Company and its subsidiaries as of the dates indicated and the results of their operations and cash flows for the periods specified. Such financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved. The other financial information or operating or financial metrics of the Company included in the Registration Statement, the Time of Sale Prospectus and the Prospectus have been derived from the accounting or other records of the Company and its subsidiaries and presents fairly in all material respects the information shown thereby.
(ii) From the time of initial confidential submission of the Registration Statement to the Commission (or, if earlier, the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities Act (an “
Emerging Growth Company
”). “
Testing-the-Waters Communication
” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act.
(jj) The Company (i) has not alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Representatives with entities that are qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities Act and (ii) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. The Company has not distributed any Written Testing-the-Waters Communications other than those listed in Schedule III hereto. “
Written Testing-the-Waters Communication
” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act.
(kk) As of the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, none of (A) the Time of Sale Prospectus, (B) any free writing prospectus, when considered together with the Time of Sale Prospectus, and (C) any individual Written Testing-the-Waters Communication, when considered together with the Time of Sale Prospectus, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
13
(ll) The Company and each of its subsidiaries have complied with, and are presently in compliance with, its privacy and security policies and third-party obligations (imposed by applicable law, contract or otherwise) regarding the collection, use, transfer, storage, protection, disposal and disclosure by the Company and its subsidiaries of personally identifiable information and/or any other information collected from or provided by third parties except to the extent that the failure to do so would not, individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole. The Company and its subsidiaries have taken commercially reasonable steps to protect the information technology systems and data used in connection with the operation of the Company and/or its subsidiaries. The Company and its subsidiaries have used commercially reasonable efforts to establish, and have established, commercially reasonable disaster recovery and security plans, procedures and facilities for their respective businesses, including, without limitation, for the information technology systems and data held or used by or for the Company and/or any of its subsidiaries. To the Company’s knowledge, except as disclosed in the Time of Sale Prospectus or as would not individually or in the aggregate have a material adverse effect on the Company and its subsidiaries, taken as a whole, there has been no security breach or attack or other compromise of or relating to any such information technology system or data.
(mm) PricewaterhouseCoopers LLP, who have certified certain financial statements of the Company and its subsidiaries, are independent public accountants as required by the Securities Act, and the rules and regulations of the Commission thereunder, and the Public Company Accounting Oversight Board (United States).
(nn) Nothing has come to the attention of the Company that has caused the Company to believe that the statistical, industry-related and market-related data included in the Registration Statement, the Time of Sale Prospectus and the Prospectus are not based on or derived from sources that are reasonably reliable and accurate in all material respects. Such data are consistent with the sources from which they are derived.
2.
Representations and Warranties of Dell
. Dell represents and warrants to and agrees with each of the Underwriters that:
(a) Dell has no reason to believe that the representations and warranties of the Company contained in Section 1 are not true and correct.
(b) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and, at the Closing Date, the Time of Sale Prospectus, as
14
then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
provided
, in each case, that the representations and warranties set forth in this paragraph shall only apply to any untrue statement of a material fact or omission to state a material fact based upon the Dell Information.
(c) Dell has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation.
(d) This Agreement has been duly authorized, executed and delivered by Dell.
(e) The execution and delivery by Dell of, and the performance by Dell of its obligations under, this Agreement will not contravene any provision of (i) applicable law, (ii) the certificate of incorporation or bylaws of Dell, (iii) any agreement or other instrument binding upon Dell that is material to Dell and its subsidiaries, taken as a whole, or (iv) any judgment, order or decree of any governmental body, agency or court having jurisdiction over Dell, except in the case of each of clauses (i), (iii) and (iv) above, for any such contravention that would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency (other than as set forth in Section 1(k) hereof) is required for the performance by Dell of its obligations under this Agreement, except for (A) the registration of the Shares under the Securities Act and such consents, approvals, authorizations, orders or qualifications as may be required by the Financial Industry Regulatory Authority and under the securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares or (B) such as have previously been obtained.
(f) Except as has been waived in writing or satisfied, there is no contract, agreement or understanding between Dell and any other person to which the Company is not a party granting such person the right to require Dell or the Company to include any securities of the Company owned by such person with the Shares registered pursuant to the Registration Statement.
(g) Except for the free writing prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, each furnished to you before
15
first use, Dell has not prepared, used or referred to, and will not, without the Representatives’ prior written consent, prepare, use or refer to, any free writing prospectus. Dell has not engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the written consent of the Representatives with entities that are qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities Act and has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. Dell has not distributed any Written Testing-the-Waters Communications.
(h) Dell has not taken and will not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result in any stabilization or manipulation of the price of the Shares.
(i) Dell has not sold, issued or distributed any shares of Common Stock (including shares of Common Stock issued or issuable upon conversion of the other shares of the Company’s capital stock) during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or Regulation S of, the Securities Act.
3.
Representations and Warranties of the Selling Stockholder
. The Selling Stockholder represents and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder.
(b) The execution and delivery by the Selling Stockholder of, and the performance by the Selling Stockholder of its obligations under, this Agreement and the Power of Attorney appointing certain individuals as the Selling Stockholder’s attorneys-in-fact to the extent set forth therein, relating to the transactions contemplated hereby and by the Registration Statement (the “
Power of Attorney
”) will not contravene (i) any provision of applicable law, (ii) the certificate of incorporation or bylaws or equivalent documents of the Selling Stockholder, (iii) any indenture, mortgage, deed of trust, loan agreement lease or other similar agreement or instrument binding upon the Selling Stockholder, (iv) any agreement or other instrument binding upon the Selling Stockholder that is material to the Selling Stockholder or (v) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Selling Stockholder, except, in the case of (i), (iii), (iv) and (v) above, for such contraventions that would not reasonably be expected to have a material adverse effect on the Selling Stockholder’s ability to perform its obligations under this Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Selling Stockholder of its obligations under this Agreement or the Power of Attorney of the Selling Stockholder, except such as may be required by the
16
securities or Blue Sky laws of the various states in connection with the offer and sale of the Shares.
(c) The Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement” within the meaning of Section 8-501 of the New York Uniform Commercial Code in respect of, the Shares to be sold by the Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and the Power of Attorney and to sell, transfer and deliver the Shares to be sold by the Selling Stockholder or a security entitlement in respect of such Shares.
(d) The Power of Attorney has been duly authorized, executed and delivered by the Selling Stockholder and is a valid and binding agreement of the Selling Stockholder.
(e) Upon payment for the Shares to be sold by the Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“
Cede
”) or such other nominee as may be designated by the Depository Trust Company (“
DTC
”), registration of such Shares in the name of Cede or such other nominee and the crediting of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the New York Uniform Commercial Code (the “
UCC
”)) to such Shares), (A) each of the Underwriters shall be a “protected purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y) DTC will be registered as a “securities intermediary” within the meaning of Section 8-102 of the UCC and (z) appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(f) The Selling Stockholder is not prompted by any material non-public information concerning the Company or its subsidiaries which is not set forth in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(g) (i) The Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not 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, (ii) the Time of Sale Prospectus does not, and at the time of each sale of the Shares in
17
connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) each broadly available road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading,
provided
that the representations and warranties set forth in this paragraph are limited to statements or omissions made in reliance upon information relating to the Selling Stockholder furnished to the Company in writing by the Selling Stockholder expressly for use in the Registration Statement, the Time of Sale Prospectus, the roadshow the Prospectus or any amendments or supplements thereto. For purposes of this Agreement, the only information furnished to the Company by the Selling Stockholder is the legal name and address of, and the number of shares beneficially owned and offered by, the Selling Stockholder, and the other information with respect to and furnished by the Selling Stockholder that appears under the caption “Principal and Selling Stockholders” in the Preliminary Prospectus (collectively, the “
Selling Stockholder Information
”).
(h) (i) Neither the Selling Stockholder nor any of its subsidiaries, or, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or affiliate thereof, is a Person that is, or is owned or controlled by one or more Persons that are:
(A) the subject of any Sanctions, or
(B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
(ii) The Selling Stockholder will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:
(A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or
(B) in any other manner that will result in a violation of Sanctions by any Person (including any Person
18
participating
in the offering, whether as underwriter, advisor, investor or otherwise).
(iii) For the past five years, the Selling Stockholder has not knowingly engaged in, is not now knowingly engaged in, and will not engage in any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(iv) (a) Neither the Selling Stockholder nor its subsidiaries, or, to the knowledge of the Selling Stockholder, any director, officer, employee, agent, representative, or affiliate thereof has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment giving or receipt of money, property, gifts or anything else of value, directly or indirectly, to any Government Official in order to influence official action, or to any person in violation of any applicable anti-corruption laws; (b) the Selling Stockholder and its subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; and (c) neither the Selling Stockholder nor any of its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption laws.
(v) The operations of the Selling Stockholder and its subsidiaries are and have been conducted at all times in compliance with all applicable Anti-Money Laundering Laws, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Selling Stockholder or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Selling Stockholder, threatened.
(i) The Selling Stockholder represents and warrants that it is not (i) an employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, as amended (“
ERISA
”), (ii) a plan or account subject to Section 4975 of the Internal Revenue Code of 1986, as amended or (iii) an entity deemed to hold “plan assets” of any such plan or account under Section 3(42) of ERISA, 29 C.F.R. 2510.3-101, or otherwise.
(j) No Dutch registration tax, stamp duty, or any other similar documentary tax or duty is payable in the Netherlands or to any Dutch taxing authority by or on behalf of the Underwriters, the Company or any of its subsidiaries as a result of (i) the execution, delivery or consummation of this
19
Agreement by the Selling Stockholder, (ii) the sale and delivery of the Shares to be sold by the Selling Stockholder to the Underwriters or purchasers procured by the Underwriters, or (iii) the resale and delivery of such Shares by the Underwriters in the manner contemplated herein.
(k) The Selling Stockholder has the power to submit, and pursuant to Section 9(d) has, to the extent permitted by law, legally, validly, effectively and irrevocably submitted, to the jurisdiction of the Specified Courts (as defined in Section 9(d)), and has the power to designate, appoint and empower, and pursuant to Section 9(d), has legally, validly and effectively designated, appointed and empowered an agent for service of process in any suit or proceeding based on or arising under this Agreement in any of the Specified Courts.
4.
Agreements to Sell and Purchase.
Each Seller, severally and not jointly, hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from such Seller the respective numbers of Firm Shares set forth in Schedule I hereto opposite its name at $[ ] a Share (the “
Purchase Price
”).
On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company agrees to sell to the Underwriters the Additional Shares, and the Underwriters shall have the right to purchase, severally and not jointly, up to [ ] Additional Shares at the Purchase Price,
provided, however,
that the amount paid by the Underwriters for any Additional Shares shall be reduced by an amount per share equal to any dividends declared by the Company and payable on the Firm Shares but not payable on such Additional Shares. You may exercise this right on behalf of the Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters and the date on which such Additional Shares are to be purchased. Each purchase date must be at least one business day after the written notice is given and may not be earlier than the closing date for the Firm Shares nor later than ten business days after the date of such notice. Additional Shares may be purchased as provided in Section 6 hereof solely for the purpose of covering over-allotments made in connection with the offering of the Firm Shares. On each day, if any, that Additional Shares are to be purchased (an “
Option Closing Date
”), each Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same proportion to the total number of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm Shares.
5.
Terms of Public Offering
. The Sellers are advised by you that the Underwriters propose to make a public offering of their respective portions of the Shares as soon after the Registration Statement and this Agreement have become effective as in your judgment is advisable. The Sellers are further advised by you that the Shares are to
20
be offered to the public initially at $[ ] a Share (the “
Public Offering Price
”) and to certain dealers selected by you at a price that represents a concession not in excess of $[ ] a Share under the Public Offering Price, and that any Underwriter may allow, and such dealers may reallow, a concession, not in excess of $[ ] a Share, to any Underwriter or to certain other dealers.
6.
Payment and Delivery.
Payment for the Firm Shares to be sold by each Seller shall be made to such Seller in Federal or other funds immediately available in New York City against delivery of the Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on [ ], 2018, or at such other time on the same or such other date, not later than [ ], 2018, as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the “
Closing Date
.”
Payment for any Additional Shares shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Additional Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on the date specified in the corresponding notice described in Section 4 or at such other time on the same or on such other date, in any event not later than [ ], 2018, as shall be designated in writing by you.
The Firm Shares and Additional Shares shall be registered in such names and in such denominations as you shall request in writing not later than one full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and Additional Shares shall be delivered to you on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Shares to the Underwriters duly paid, against payment of the Purchase Price therefor.
7.
Conditions to the Underwriters’ Obligations
. The obligations of the Sellers to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [ ], New York City time, on the date hereof.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities of the Company or any of its subsidiaries or controlled affiliates by any
21
“nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business, properties or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Sections 7(a)(i) and 7(a)(ii) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of Dell, to the effect that the representations and warranties of Dell contained in this Agreement are true and correct as of the Closing Date and that Dell has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an opinion of Davis Polk & Wardwell LLP, outside counsel for the Company, dated the Closing Date, in form and substance reasonably satisfactory to you.
(e) The Underwriters shall have received on the Closing Date an opinion of counsel for the Selling Stockholder, dated the Closing Date, in form and substance reasonably satisfactory to you.
(f) The Underwriters shall have received on the Closing Date an opinion of Fenwick & West LLP, counsel for the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to you.
With respect to Sections 7(d) and 7(f) above, Davis Polk & Wardwell LLP and Fenwick & West LLP may state that their opinions and beliefs are based upon their participation in the preparation of the Registration Statement, the Time of Sale Prospectus and the Prospectus and any amendments or supplements thereto and review and discussion of the
22
contents thereof, but are without independent check or verification, except as specified. With respect to Section 7(e) above, counsel for the Selling Stockholder may rely upon an opinion or opinions of counsel for the Selling Stockholder and with respect to factual matters and to the extent such counsel deems appropriate, upon the representations of the Selling Stockholder contained herein and in the Power of Attorney of such Selling Stockholder and in other documents and instruments; provided that (A) such counsel for the Selling Stockholder is satisfactory to your counsel, (B) a copy of each opinion so relied upon is delivered to you and is in form and substance satisfactory to your counsel, (C) copies of the Power of Attorney and of any such other documents and instruments shall be delivered to you and shall be in form and substance satisfactory to your counsel and (D) such counsel for the Selling Stockholder shall state in its opinion that it is justified in relying on each such other opinion.
The opinion of Davis Polk & Wardwell LLP described in Section 7(d) above and the opinion of counsel for the Selling Stockholder described in Section 7(e) above shall be rendered to the Underwriters at the request of the Company or the Selling Stockholder, as the case may be, and shall so state therein.
(g) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from PricewaterhouseCoopers LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus;
provided
that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.
(h) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain stockholders, officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(i) The Underwriters shall have received, on the date hereof and the Closing Date, a certificate of the principal financial officer of the Company, dated as of the date hereof or as of the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, containing statements and information with respect to certain information contained in the Time of Sale Prospectus and the Prospectus.
(j) The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable Option Closing Date of the following:
23
(i) a certificate, dated the Option Closing Date and signed by an executive officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 7(b) hereof remains true and correct as of such Option Closing Date;
(ii) a certificate, dated the Option Closing Date and signed by an executive officer of Dell, confirming that the certificate delivered on the Closing Date pursuant to Section 7(c) hereof remains true and correct as of such Option Closing Date;
(iii) an opinion of Davis Polk & Wardwell LLP, outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 7(d) hereof;
(iv) an opinion of Fenwick & West LLP, counsel for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 7(e) hereof;
(v) a letter dated the Option Closing Date, in form and substance satisfactory to the Underwriters, from PricewaterhouseCoopers LLP, independent public accountants, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 7(f) hereof;
provided
that the letter delivered on the Option Closing Date shall use a “cut-off date” not earlier than three business days prior to such Option Closing Date;
(vi) a certificate of the principal financial officer of the Company, dated the Option Closing Date, substantially in the same form and substance as the letter furnished to the Underwriters pursuant to Section 7(h) hereof, containing statements and information with respect to certain information contained in the Time of Sale Prospectus and the Prospectus; and
(vii) such other documents as you may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares.
8.
Covenants of the Company
. The Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, [ ] signed copies of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish to you in New York City, without charge, prior to
24
10:00 a.m., New York City time, on the business day next succeeding the date of this Agreement and during the period mentioned in Section 8(e) or 8(f) below, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.
(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or
25
dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
(g) To endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request;
provided
,
however,
that nothing contained herein shall require the Company to qualify to do business in any jurisdiction, to execute or file a general consent to service of process in any jurisdiction or to subject itself to taxation in any jurisdiction in which it is not otherwise subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) If any Seller is not a U.S. person for U.S. federal income tax purposes, the Company will deliver to each Underwriter (or its agent), on or before the Closing Date, (i) a certificate with respect to the Company’s status as a “United States real property holding corporation,” dated not more than thirty (30) days prior to the Closing Date, as described in Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), and (ii) proof of delivery to the IRS of the required notice, as described in Treasury Regulations 1.897-2(h)(2).
(j) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel, the Company’s accountants, and counsel to the Selling Stockholder in connection with the registration and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by,
26
or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters, including any transfer or other taxes payable thereon, (iii) the reasonable, documented cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with the qualification of the Shares for offer and sale under state securities laws as provided in Section 8(g) hereof, including filing fees and the reasonable, documented fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) all filing fees and up to $50,000 in respect of the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Shares by the Financial Industry Regulatory Authority, (v) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Class A Common Stock and all costs and expenses incident to listing the Shares on the NYSE, (vi) the cost of printing certificates representing the Shares, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and fifty percent (50%) of the cost of any aircraft chartered in connection with the road show (the remaining fifty percent (50%) of the cost of such aircraft to be paid by the Underwriters), (ix) the document production charges and expenses associated with printing this Agreement and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section 8(i). It is understood, however, that except as provided in this Section 8(i), Section 11 hereof entitled “Indemnity and Contribution” and the last paragraph of Section 14 hereof, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make and all travel and other expenses of the Underwriters or any of their employees incurred by them in connection with participation in investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Shares, other than the cost of aircraft chartered in connection with the roadshow, for which the Underwriters agree to pay for the other fifty percent (50%) not paid for by the Company, as described above. Notwithstanding the foregoing, the provisions of this Section
27
shall not supersede or otherwise affect any agreement that the Sellers may otherwise have for the allocation of such expenses among themselves.
(k) The Company will promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Securities Act and (b) completion of the Restricted Period (as defined in this Section 8).
(l) If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.
The Company also covenants with each Underwriter that, without the prior written consent of the Representatives on behalf of the Underwriters, it will not, during the period ending 180 days after the date of the Prospectus (the “
Restricted Period
”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or (3) file any registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock.
The restrictions contained in the preceding paragraph shall not apply to (a) the Shares to be sold hereunder, (b) the issuance by the Company of shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock pursuant to the conversion or exchange of convertible or exchangeable securities or the exercise of warrants or options (including net exercise) or the settlement of restricted stock units (including net settlement), in each case outstanding on the date hereof and described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus, (c) grants of stock options, stock awards, restricted stock, restricted stock units or other equity awards, in each case convertible into or exercisable for Class A Common Stock and the issuance of Class A Common Stock or securities convertible into or exercisable for Class A Common Stock (whether upon the exercise of stock options or otherwise) to employees, officers, directors, advisors or consultants of the Company pursuant to the terms of an equity compensation plan in effect on the date hereof and described in each of the Registration Statement, the Time of Sale Prospectus and the
28
Prospectus, (d) the entry into an agreement providing for the issuance by the Company of Common Stock or securities convertible into, exercisable for or which are otherwise exchangeable for or represent the right to receive Common Stock in connection with (x) the acquisition by the Company or any of its subsidiaries of the securities, business, technology, property or other assets of another person or entity or pursuant to an employee benefit plan assumed by the Company or any of its subsidiaries in connection with such acquisition, and the issuance of any Common Stock or securities convertible into, exercisable for or which are otherwise exchangeable for or represent the right to receive Common Stock pursuant to any such agreement or (y) the Company’s joint ventures, commercial relationships and other strategic transactions,
provided
that the aggregate number of shares of Common Stock or securities convertible into, exercisable for or which are otherwise exchangeable for or represent the right to receive Common Stock (on an as-converted basis) that the Company may sell or issue or agree to sell or issue pursuant to this clause (d) shall not exceed 10% of the total number of shares of Common Stock outstanding as of the Closing Date immediately following the completion of the transactions contemplated by this Agreement to be completed as of that date, or (e) the filing of any registration statement on Form S-8 relating to securities granted or to be granted pursuant to any plan in effect on the date hereof and described in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus or any assumed employee benefit plan contemplated by clause (d); provided, that all recipients of any such securities issued pursuant to clause (b), (c) or (d) shall enter into a lock-up letter substantially in the form of Exhibit A hereto covering the remainder of the Restricted Period.
If the Representatives, in their discretion, agrees to release or waive the restrictions set forth in a lock-up letter described in Section 7(h) hereof for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release (substantially in the form attached as Exhibit 1 to the Form of Waiver of Lock Up attached as Exhibit B hereto) through a major news service at least two business days before the effective date of the release or waiver.
9.
Covenants of the Sellers
. Each Seller, severally and not jointly, covenants with each Underwriter as follows:
(a) Each Selling Stockholder will deliver to each Underwriter (or its agent), prior to or at the Closing Date, a properly completed and executed Internal Revenue Service (“
IRS
”) Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments to such form.
(b) All sums payable by the Company or the Selling Stockholder under this Agreement shall be paid free and clear of and without deductions or withholdings of any present or future taxes or duties, unless the deduction or withholding is required by law, in which case the Company or the Selling Stockholder, as the case may be, shall pay such additional amount as will result in
29
the receipt by each Underwriter of the full amount that would have been received had no deduction or withholding been made.
(c) All sums payable to an Underwriter shall be considered exclusive of any value added or similar taxes. Where the Company or, as the case may be, the Selling Stockholder is obliged to pay value added or similar tax on any amount payable hereunder to an Underwriter, the Company or the Selling Stockholder, as the case may be, shall in addition to the sum payable hereunder pay an amount equal to any applicable value added or similar tax.
(d) The Selling Stockholder irrevocably submits to the non-exclusive jurisdiction of any New York State or United States Federal court sitting in The City of New York (the “
Specified Courts
”) over any suit, action or proceeding arising out of or relating to this Agreement, the Prospectus, the Registration Statement or the offering of the Shares (each, a “
Related Proceeding
”). The Selling Stockholder irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of venue of any Related Proceeding brought in such a court and any claim that any such Related Proceeding brought in such a court has been brought in an inconvenient forum. To the extent that the Selling Stockholder has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, the Selling Stockholder irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding.
(e) The Selling Stockholder hereby irrevocably appoints GE Digital LLC, with offices at 2623 Camino Ramon, San Ramon, California 94583 (Attn: General Counsel), as its agent for service of process in any Related Proceeding and agrees that service of process in any such Related Proceeding may be made upon it at the office of such agent. The Selling Stockholder waives, to the fullest extent permitted by law, any other requirements of or objections to personal jurisdiction with respect thereto. The Selling Stockholder represents and warrants that such agent has agreed to act as the Selling Stockholder’s agent for service of process, and the Selling Stockholder agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect.
10.
Covenants of the Underwriters
. Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) under the Securities Act a free writing prospectus prepared by, on behalf of or used by such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
30
11. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act and each officer and director of any Underwriter from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show as defined in Rule 433(h) under the Securities Act (a “road show”), or the Prospectus or any amendment or supplement thereto, or any Written Testing-the-Waters Communication, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except, in each case, insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon (1) information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein or (2) the Dell Information.
(b) Dell agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act and each officer and director of any Underwriter from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show, the Prospectus or any amendment
31
or supplement thereto or any Written Testing-the-Waters Communication, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except, in each case, insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein;
provided
,
however,
that Dell’s agreement to indemnify and hold harmless hereunder shall only apply to losses, claims, damages or liabilities caused by any such untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with the Dell Information furnished by or on behalf of Dell for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, any road show, the Prospectus, or any amendments or supplements thereto, or any Written Testing-the-Waters Communication.
(c) The Selling Stockholder agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act and each officer and director of any Underwriter to the same extent as the indemnity set forth in paragraph (a) above, but only to the extent, in each case, insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based the Selling Stockholder Information. The liability of the Selling Stockholder under the indemnity agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by such Selling Stockholder under this Agreement.
(d) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholder, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company or the Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus, any road show, the Prospectus, or any amendments or supplements thereto, or any Written Testing-the-Waters Communication.
(e) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 11(a), 9(b) or 11(c) hereof, such person (the “
indemnified party
”) shall promptly notify the person against whom such
32
indemnity may be sought (the “
indemnifying party
”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the reasonably incurred, documented fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed in writing to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives, in the case of parties indemnified pursuant to Section 9(a) and 9(b) hereof, and by the Company, in the case of parties indemnified pursuant to Section 11(c) hereof. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability, or a failure to act, by or on behalf of any indemnified party.
(f) To the extent the indemnification provided for in Section 11(a), 9(b) or 11(c) hereof is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by
33
such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 11(e)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 11(e)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Sellers and Dell on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Sellers and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand 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 Sellers or Dell or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 11 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint. The liability of the Selling Stockholder under the contribution agreement contained in this paragraph shall be limited to an amount equal to the aggregate Public Offering Price of the Shares sold by the Selling Stockholder under this Agreement.
(g) The Sellers, Dell and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 11 were determined by
pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 11(e) hereof. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 11(e) hereof shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 11, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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
34
guilty of such fraudulent misrepresentation. The remedies provided for in this Section 11 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.
(h)
The indemnity and contribution provisions contained in this Section 11 and the representations, warranties and other statements of the Sellers and Dell contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any director or officer of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, the Selling Stockholder or any person controlling the Selling Stockholder, or on behalf of the Company, its officers or directors or any person controlling the Company or by or on behalf of Dell, its officers or directors or any person controlling Dell and (iii) acceptance of and payment for any of the Shares.
12.
Termination
. The Underwriters may terminate this Agreement by notice given by you to the Company and Dell, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the NYSE MKT, the NASDAQ Global Market, the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
13.
Effectiveness; Defaulting Underwriters
. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite their respective names in Schedule I hereto bears to the aggregate number of Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date;
provided
that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased
35
pursuant to this Section 13 by an amount in excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to you, the Company, the Selling Stockholder and Dell for the purchase of such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter, the Company, the Selling Stockholder or Dell. In any such case either you or the relevant Sellers shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Additional Shares to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of any Seller or Dell to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason any Seller or Dell shall be unable to perform its obligations under this Agreement, the Sellers will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
14.
Entire Agreement
. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the Company, the Selling Stockholder, Dell and the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares.
(b)
Each of the Company and Dell acknowledges that in connection with the offering of the Shares: (i) the Underwriters have acted at arm’s length, are not agents of, and owe no fiduciary duties to, the Company, Dell or any other person, (ii) the Underwriters owe the Company and Dell only those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement), if any, and (iii) the Underwriters may have interests that differ from those of the Company and Dell. Each of the Company and Dell waives to the full extent permitted by applicable law any claims it may
36
have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Shares.
15.
Counterparts
. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
16.
Applicable Law
. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
17.
Headings
. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.
18.
USA Patriot Act
. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, Dell and the Selling Stockholder, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
19.
Notices
. All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to you in care of Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to the Legal Department and Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282, Attention: Registration Department; if to the Company shall be delivered, mailed or sent to 875 Howard Street, Fifth Floor, San Francisco, California 94103; if to Dell shall be delivered, mailed or sent to Dell Inc. at One Dell Way, Round Rock Texas 78682, Attention: Senior Vice President-Corporate, Securities & Finance Counsel; if to the Selling Stockholder shall be delivered, mailed or sent to GE International Holdings B.V. c/o GE Digital LLC at 2623 Camino Ramon, San Ramon, California 94583, Attention: General Counsel.
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Very truly yours,
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PIVOTAL SOFTWARE, INC.
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By:
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Name:
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Title:
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DELL INC.
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By:
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Name:
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Title:
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37
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THE SELLING STOCKHOLDER:
GE INTERNATIONAL HOLDINGS B.V.
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By:
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Name:
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Title:
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Accepted as of the date hereof
Morgan Stanley & Co. LLC and
Goldman Sachs & Co. LLC
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Acting severally on behalf of themselves and
the several Underwriters named in
Schedule I hereto.
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By:
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Morgan Stanley & Co. LLC
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By:
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Name:
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Title:
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By:
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Goldman Sachs & Co. LLC
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By:
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Name:
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Title:
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38
SCHEDULE I
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Underwriter
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Number of Firm Shares
To Be Purchased
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Morgan Stanley & Co. LLC
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Goldman Sachs & Co. LLC
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Citigroup Global Markets Inc.
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Merrill Lynch, Pierce, Fenner & Smith Incorporated
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Barclays Capital Inc.
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Credit Suisse Securities (USA) LLC
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RBC Capital Markets, LLC
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UBS Securities LLC
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Wells Fargo Securities, LLC
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KeyBanc Capital Markets Inc.
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William Blair & Company, L.L.C.
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Mischler Financial Group, Inc.
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Samuel A. Ramirez & Company, Inc.
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Siebert Cisneros Shank & Co., L.L.C.
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The Williams Capital Group, L.P.
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Total:
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I-
1
SCHEDULE II
Time of Sale Prospectus
1.
Preliminary Prospectus issued [date]
2.
[identify all free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act]
3.
[free writing prospectus containing a description of terms that does not reflect final terms, if the Time of Sale Prospectus does not include a final term sheet]
4.
[orally communicated pricing information such as price per share and size of offering if a Rule 134 pricing term sheet is used at the time of sale instead of a pricing term sheet filed by the Company under Rule 433(d) as a free writing prospectus]
II-
1
SCHEDULE III
Written Testing-the-Waters Communications
III-
1
EXHIBIT A
FORM OF LOCK-UP LETTER
Morgan Stanley & Co. LLC
Goldman Sachs & Co. LLC
c/o
Morgan Stanley & Co. LLC
1585 Broadway
New York, NY 10036
c/o
Goldman Sachs & Co. LLC
200 West Street
New York, NY 10282
Ladies and Gentlemen:
The undersigned understands that Morgan Stanley & Co. LLC (“
Morgan Stanley
”) and Goldman Sachs & Co. LLC (“
Goldman Sachs
” and together with Morgan Stanley, the “
Representatives
”) propose to enter into an Underwriting Agreement (the “
Underwriting Agreement
”) with Pivotal Software, Inc., a Delaware corporation (the “
Company
”), providing for the public offering (the “
Public Offering
”) by the several Underwriters, including the Representatives (the “
Underwriters
”), of shares (the “
Shares
”) of the Class A common stock, $0.01 par value per share, of the Company (the “
Class A Common Stock
” and, together with the Class B common stock, $0.01 par value per share, of the Company, the “
Common Stock
”).
To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of Morgan Stanley and Goldman Sachs on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus (the “
Restricted Period
”) relating to the Public Offering (the “
Prospectus
”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “
Exchange Act
”)) by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for Common Stock (any shares of Common Stock or securities convertible into or exercisable or exchangeable for Common Stock collectively, the “
Securities
,” and any such Securities beneficially owned by the undersigned, the “
Undersigned’s Securities
”) or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other Securities, in cash or otherwise. The foregoing sentence shall not apply to:
(a)
sales of Common Stock by the undersigned to the Underwriters pursuant to the Underwriting Agreement;
A-
1
(b)
transactions relating to shares of Common Stock acquired in the Public Offering or shares of Common Stock or other Securities acquired in open market transactions after the completion of the Public Offering;
(c)
transfers of the Undersigned’s Securities as a bona fide gift, bona fide estate planning purposes or charitable contribution;
(d)
transfers of the Undersigned’s Securities by will or other testamentary document or intestate succession upon the death of the undersigned, including to the transferee’s nominee or custodian;
(e)
transfers of the Undersigned’s Securities to an immediate family member or any trust, partnership or limited liability company for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this letter agreement, “
immediate family
” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin);
(f)
transfers or distributions of the Undersigned’s Securities by a stockholder that is a trust to a trustor or beneficiary of the trust or to the estate of a beneficiary of such trust;
(g)
if the undersigned is a corporation, partnership, limited liability company or other business entity, transfers of the Undersigned’s Securities (1) as part of a disposition, transfer or distribution by the undersigned to its equity holders, limited partners or members (or in each case its nominee or custodian), or any investment fund or other entity controlled or managed by the undersigned or (2) to another corporation, partnership, limited liability company, or other business entity (or in each case its nominee or custodian) that controls, is controlled by or is under common control with the undersigned;
(h)
transfers of the Undersigned’s Securities that occur by operation of law pursuant to a qualified domestic order or in connection with a divorce settlement;
provided
that if the undersigned is required to file a report under Section 16(a) of the Exchange Act during the Restricted Period reporting a reduction in beneficial ownership of shares of Common Stock or other Securities, the undersigned shall include a statement in such report to the effect that such transfer occurred pursuant to such a domestic order or in connection with a divorce settlement;
(i)
the conversion of any convertible security of the Company, including the conversion of the outstanding preferred stock of the Company into shares of Common Stock in connection with the Public Offering and the conversion of the outstanding Class B common stock into shares of Class A Common Stock, or other right described in the Prospectus or otherwise disclosed to the Underwriters in writing into shares of Common Stock or other Securities;
provided
that such shares of Common Stock or other Securities underlying any such security or right shall continue to be subject to the restrictions on transfer set forth in this letter agreement;
(j)
the exercise or settlement of stock options (“
stock options
”) or restricted stock units (“
restricted stock units
”) granted under any stock-based employee benefit plan or other equity award plan of the Company described in the Prospectus (“
benefit plan
”)
A-
2
(excluding, for the avoidance of doubt, all manners of exercise that would involve a sale in the open market of any Securities relating to such stock options or restricted stock units, whether to cover the applicable aggregate exercise price, withholding tax obligations or otherwise);
provided
that (x) the shares of Common Stock underlying such stock options or restricted stock units shall continue to be subject to the restrictions set forth in this letter agreement and (y) if the undersigned is required to file a report under Section 16(a) of the Exchange Act during the Restricted Period, the undersigned shall include a statement in such report clearly indicating that (A) the filing relates to the circumstances described in this clause (i) and (B) no shares of Common Stock or other Securities were sold by the reporting person;
(k)
the receipt by the undersigned from the Company of shares of Common Stock and the disposition of the Undersigned’s Securities to the Company upon the exercise of stock options on a “cashless” or “net exercise” basis to the extent permitted by a benefit plan so long as such “cashless” or “net exercise” is effected solely by the surrender of outstanding stock options (or the Common Stock issuable upon the exercise thereof) to the Company and the Company’s cancellation of all or a portion thereof to pay the exercise price (excluding, for the avoidance of doubt, all manners of exercise that would involve a sale in the open market of any Securities relating to such stock options, whether to cover the applicable aggregate exercise price, withholding tax obligations or otherwise);
provided
that the shares of Common Stock underlying such stock options shall continue to be subject to the restrictions on transfer set forth in this letter agreement;
(l)
the disposition of the Undersigned’s Securities to the Company solely to cover tax withholding obligations of the undersigned in connection with (1) the vesting of restricted stock units or other awards granted under a benefit plan or (2) the exercise of stock options;
provided
that (x) the shares of Common Stock underlying such stock options, restricted stock units or other awards shall continue to be subject to the restrictions set forth in this letter agreement and (y) if the undersigned is required to file a report under Section 16(a) of the Exchange Act during the Restricted Period reporting a reduction in beneficial ownership of shares of Common Stock or other Securities related to such disposition of the Undersigned’s Securities to the Company by the undersigned solely to satisfy tax withholding obligations, the undersigned shall include a statement in such report to the effect that the filing relates to the satisfaction of tax withholding obligations of the undersigned in connection with such vesting or exercise;
(m)
transfers of the Undersigned’s Securities to the Company pursuant to agreements under which (1) such Securities were issued and (2) the Company has the option to repurchase such Securities or other security or a right of first refusal with respect to transfers of such Securities or other security;
provided
that no filing under Section 16 of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall be required or shall be voluntarily made within 30 days after the date of the Prospectus, and after such 30
th
day, any filing under Section 16 of the Exchange Act shall clearly indicate in the footnotes thereto that (A) the filing relates to the circumstances described in this clause (m) and (B) no Securities or other securities were sold by the reporting person;
(n)
transfers of the Undersigned’s Securities pursuant to a bona fide third-party tender offer, merger, consolidation or other similar transaction made to all holders of the Common Stock that is expected to result in a change of control of the Company (including, without limitation, entering into any lock-up, voting or similar agreement
A-
3
pursuant to which the undersigned may agree to transfer, sell, tender or otherwise dispose of Common Stock or other Securities in connection with any such transaction, or vote any Securities in favor of any such transaction) that has been approved by the board of directors of the Company;
provided
that if such third-party tender offer, merger, consolidation or other such transaction is not completed, the Common Stock owned by the undersigned shall remain subject to the restrictions contained in this letter agreement. For the purposes of this clause (n), a “
change of control
” means the consummation of any bona fide third-party tender offer, merger, consolidation or other similar transaction the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, other than the Company or the Underwriters pursuant to the Public Offering, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of securities representing 50% or more of the total voting power of the Company or the surviving entity; or
(o)
the establishment or amendment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock;
provided
that (1) such plan does not provide for the transfer of Common Stock during the Restricted Period and (2) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment or amendment, as the case may be, of such plan, such announcement or filing shall include a statement to the effect that no transfer of Common Stock may be made under such plan during the Restricted Period;
provided
that:
(x)
in the case of any transfer or distribution pursuant to each of the clauses (c) through (h) above, each donee, trustee, distributee or transferee shall sign and deliver a lock-up agreement to the Representatives substantially in the form of this letter agreement; and
(y)
in the case of any transfer or distribution pursuant to each of the clauses (a) through (g) and (k) above, no filing under Section 16 of the Exchange Act, reporting a reduction in beneficial ownership of the Undersigned’s Securities, shall be required or shall be voluntarily made during the Restricted Period.
In addition, the undersigned agrees that, without the prior written consent of Morgan Stanley and Goldman Sachs on behalf of the Underwriters, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any other Security. The undersigned also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares of Common Stock except in compliance with the foregoing restrictions.
If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed Shares the undersigned may purchase in or in connection with the Public Offering.
If the undersigned is an officer or director of the Company, (i) Morgan Stanley and Goldman Sachs agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock,
A-
4
Morgan Stanley and Goldman Sachs will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by Morgan Stanley and Goldman Sachs hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter agreement to the extent and for the duration that such terms remain in effect at the time of the transfer.
The undersigned understands that the Company and the Underwriters are relying upon this letter agreement in proceeding toward consummation of the Public Offering. The undersigned further understands that this letter agreement is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns. This letter agreement shall automatically terminate, and the undersigned will be released from all of his, her or its obligations hereunder, upon the earliest to occur, if any, of (a) the date that the Company advises the Representatives, in writing, prior to the execution of the Underwriting Agreement, that it has determined not to proceed with the Public Offering, (b) the date that the Company withdraws the registration statement related to the Public Offering before the execution of the Underwriting Agreement, (c) if the Underwriting Agreement is executed but terminated (other than the provisions thereof that survive termination) prior to payment for and delivery of the shares of Common Stock to be sold thereunder, the date that the Underwriting Agreement is terminated or (d) August 31, 2018, if the Public Offering of the Shares has not been completed by such date.
Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Underwriters.
[
Signature page follows
]
A-
5
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Very truly yours,
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IF AN INDIVIDUAL:
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IF AN ENTITY:
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By:
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(duly authorized signature)
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(please print complete name of entity)
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Name:
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By:
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(please print full name)
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(duly authorized signature)
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Name:
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(please print full name)
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Title:
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(please print full title)
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Address:
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Address:
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E-mail:
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E-mail:
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[
Signature Page to Lock-Up Agreement
]
A-
6
EXHIBIT B
FORM OF WAIVER OF LOCK-UP
[Name and Address of
Officer or Director
Requesting Waiver]
Dear Mr./Ms. [Name]:
This
letter is being delivered to you in connection with the offering by Pivotal Software, Inc. (the “
Company
”) of shares of the Company’s Class A Common Stock, $0.01 par value, of the Company and the lock-up letter dated , 2018 (the “
Lock-up Letter
”), executed by you in connection with such offering, and your request for a [waiver] [release] dated , 20 , with respect to shares of the Company’s Class [A][B] Common Stock (the “
Shares
”).
Morgan Stanley & Co. LLC and Goldman Sachs & Co. LLC hereby agree to [waive] [release] the transfer restrictions set forth in the Lock-up Letter, but only with respect to the Shares, effective , 20 ; provided, however, that such [waiver] [release] is conditioned on the Company announcing the impending [waiver] [release] by press release in substantially the form set forth on
Exhibit 1
hereto through a major news service at least two business days before effectiveness of such [waiver] [release]. This letter will serve as notice to the Company of the impending [waiver] [release].
Except as expressly [waived] [released] hereby, the Lock-up Letter shall remain in full force and effect.
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Very truly yours,
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Morgan Stanley & Co. LLC and
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Goldman Sachs & Co. LLC
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Acting severally on behalf of themselves
and the several Underwriters named in
Schedule 1 hereto
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By:
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Name:
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Title:
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cc: Company
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B-
1
EXHIBIT 1
FORM OF PRESS RELEASE
Pivotal Software, Inc.
[Date]
Pivotal Software, Inc. (the “
Company
”) announced today that [
·
], the lead book-running managers in the Company’s recent public sale of shares of Class A Common Stock are [waiving][releasing] a lock-up restriction with respect to shares of the Company’s Class [A][B] Common Stock held by [certain officers or directors] [an officer or director] of the Company. The [waiver][release] will take effect on , 20 , and the shares may be sold on or after such date.
This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF
PIVOTAL SOFTWARE, INC.
(Pursuant to Sections 242 and 245 of the
General Corporation Law of the State of Delaware)
Pivotal Software, Inc., a corporation organized and existing under the laws of the State of Delaware (the “
Corporation
”), certifies that:
A.
The name of the Corporation is Pivotal Software, Inc. The date of filing of the original Certificate of Incorporation of the Corporation with the Secretary of State of the State of Delaware was April 1, 2013 (the “
Original Certificate of Incorporation
”). The name under which the Corporation filed the Original Certificate of Incorporation was “GoPivotal, Inc.”
B.
This Amended and Restated Certificate of Incorporation (“
Certificate of Incorporation
”) was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, and has been duly approved by the written consent of the stockholders of the Corporation in accordance with Section 228 of the General Corporation Law of the State of Delaware.
C.
The text of the Certificate of Incorporation as amended and restated shall read in full as follows:
ARTICLE I
NAME
The name of the corporation is Pivotal Software, Inc. (the “
Corporation
”).
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation’s registered office in the State of Delaware is 251 Little Falls Drive, in the City of Wilmington, County of New Castle 19808. The name of the Corporation’s registered agent at such address is Corporation Service Company.
1
ARTICLE III
PURPOSE
The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “
DGCL
”).
ARTICLE IV
CAPITALIZATION
Section 4.1
Authorized Stock
. The Corporation shall be authorized to issue 5,000,000,000 shares of capital stock, of which (a) 4,000,000,000 shares shall be shares of Class A Common Stock, par value $0.01 per share (the “
Class A Common Stock
”), (b) 500,000,000 shares shall be shares of Class B Common Stock, par value $0.01 per share (the “
Class B Common Stock
,” the Class A Common Stock and the Class B Common Stock being collectively referred to herein as “
Common Stock
”), and (c) 500,000,000 shares shall be shares of Preferred Stock, par value $0.01 per share (“
Preferred Stock
”). The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock such number of shares of Class A Common Stock as would become issuable upon the conversion of all shares of Class B Common Stock then outstanding;
provided
,
however
, that, except as set forth in
Section 4.3(j
), nothing contained in this Certificate of Incorporation (as amended and/or restated from time to time, this “
Certificate of Incorporation
”) shall be construed to preclude the Corporation from satisfying its obligations in respect of an exchange for, or conversion to, shares of Common Stock by delivery of shares of such applicable Common Stock which are held in the treasury of the Corporation. Subject to the rights of the holders of any series of Preferred Stock then outstanding, the number of authorized shares of any of the Class A Common Stock, the Class B Common Stock or the Preferred Stock may be increased or decreased (but not below the number of shares of the Class A Common Stock, the Class B Common Stock or the Preferred Stock, as the case may be, then outstanding) by the affirmative vote of the holders of shares of capital stock of the Corporation, voting as a single class, representing a majority of the Total Voting Power, irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of any of the Class A Common Stock, the Class B Common Stock or the Preferred Stock, voting separately as a class, shall be required therefor. Capitalized terms used in this Certificate of Incorporation without definition shall have the meanings assigned thereto in
Article XIII
.
Section 4.2
Common Stock
. The voting powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations and restrictions thereof, of the Class A Common Stock and Class B Common Stock are as follows:
(a)
Ranking
. The powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations and restrictions thereof, of the Class A Common Stock and the Class B Common Stock shall be identical in all respects, except as otherwise required by law or expressly provided in this Certificate of Incorporation. The voting, dividend and liquidation rights of the holders of the Common Stock are subject to and qualified by the
2
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 of Directors
”) upon any issuance of Preferred Stock of any series.
(b)
Voting Rights
.
(i)
Voting Generally
. Except as otherwise required by law or provided in this Certificate of Incorporation (including, without limitation,
Section 4.2(b)(ii)
,
Section 4.2
(e),
Section 4.3(d)
,
Article VI
and
Article
VII
), each share of Class A Common Stock shall be entitled to one (1) vote and each share of Class B Common Stock shall be entitled to ten (10) votes, and the holders of Class A Common Stock and Class B Common Stock shall vote together as a single class on all matters submitted to a vote of stockholders of the Corporation and their votes shall be counted and totaled together.
(ii)
Special Voting Rights
. Notwithstanding any other provision of this Certificate of Incorporation to the contrary, (A) so long as any shares of Class A Common Stock are outstanding, the Corporation shall not, without the affirmative vote of the holders of a majority of the outstanding shares of Class A Common Stock entitled to vote thereon, voting as a separate class, amend, alter or repeal (whether by merger, consolidation or otherwise) any provision of this Certificate of Incorporation to alter or change the powers, preferences or special rights of the Class A Common Stock so as to affect them adversely and (B) so long as any shares of Class B Common Stock are outstanding, the Corporation shall not, without the affirmative vote of the holders of a majority of the outstanding shares of Class B Common Stock entitled to vote thereon, voting as a separate class, amend, alter or repeal (whether by merger, consolidation or otherwise) any provision of this Certificate of Incorporation to alter or change the powers, preferences or special rights of the Class B Common Stock so as to affect them adversely. Notwithstanding any other provision of 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 that relates solely to the terms of one or more outstanding classes or series of Preferred Stock if the holders of such affected series of Preferred Stock are entitled, either separately or together with the holders of one or more other outstanding classes or series of Preferred Stock, to vote thereon pursuant to this Certificate of Incorporation or the DGCL.
(c)
Dividends; Changes in Common Stock
. No dividend or distribution may be declared or paid on any share of Class A Common Stock unless a dividend or distribution, payable in the same consideration and manner, is simultaneously declared or paid, as the case may be, on each share of Class B Common Stock, nor shall any dividend or distribution be declared or paid on any share of Class B Common Stock unless a dividend or distribution, payable in the same consideration and manner, is simultaneously declared or paid, as the case may be, on each share of Class A Common Stock, in each case without preference or priority of any kind;
provided
,
however
, that if dividends are declared that are payable in shares of Class A Common Stock or in shares of Class B Common Stock, as the case may be, or in rights, options, warrants or other securities convertible into or exercisable or exchangeable for shares of Class A Common Stock or shares of Class B Common Stock, such dividends shall be declared at the same rate on both classes of Common Stock and the dividends payable in shares of Class A
3
Common Stock or in rights, options, warrants or other securities convertible into or exercisable or exchangeable for shares of Class A Common Stock shall be payable to holders of Class A Common Stock and the dividends payable in shares of Class B Common Stock or in rights, options, warrants or other securities convertible into or exercisable or exchangeable for shares of Class B Common Stock shall be payable to holders of Class B Common Stock. If the Corporation in any manner subdivides or combines the then-outstanding shares of Class A Common Stock, the then-outstanding shares of Class B Common Stock shall be proportionately subdivided or combined, as the case may be. If the Corporation in any manner subdivides or combines the then-outstanding shares of Class B Common Stock, the then-outstanding shares of Class A Common Stock shall be proportionately subdivided or combined, as the case may be. In no event shall any stock dividends, stock splits, reverse stock splits, combinations of stock, reclassifications or recapitalizations be declared or made on any Common Stock unless contemporaneously therewith the shares of Class A Common Stock and Class B Common Stock, at the time outstanding, are treated in the same proportion and the same manner.
(d)
Liquidation
. Subject to the rights of the holders of any series of Preferred Stock and without limiting the generality of
Section 4.2(a)
, shares of Class A Common Stock and Class B Common Stock shall rank
pari passu
with each other as to any distribution of assets 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 4.2(d)
, 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 persons (which shall be subject to
Section 4.2(e)
) or any sale, lease, exchange or conveyance of all or a part of the Corporation’s assets.
(e)
Reorganization, Consolidation, Share Exchange or Merger
. Subject to the rights of the holders of any series of Preferred Stock, in the event of any reorganization, consolidation, share exchange or merger of the Corporation with or into any other person or persons in which shares of Class A Common Stock or Class B Common Stock are converted into (or entitled to receive with respect thereto) shares of capital stock or other securities or property (including cash), each holder of a share of Class A Common Stock and each holder of a share of Class B Common Stock shall be entitled to receive with respect to each such share the same kind and amount of shares of capital stock and other securities and property (including cash), other than a difference in kind or amount of capital stock and other securities received that is limited to preserving the relative voting power of the holders of Class A Common Stock and Class B Common Stock in effect prior to any such transaction, unless the different treatment of the shares of each such class of Common Stock is approved by the affirmative vote of the holders of a majority of the outstanding shares of Class A Common Stock entitled to vote thereon and a majority of the outstanding shares of Class B Common Stock entitled to vote thereon, each voting separately as a class. In the event that the holders of shares of Class A Common Stock or shares of Class B Common Stock are granted rights to elect to receive one of two or more alternative forms of consideration in respect of any such transaction, the foregoing provision shall be deemed satisfied if holders of shares of Class A Common Stock and holders of shares of Class B Common Stock, as the case may be, are granted substantially identical election rights.
4
Section 4.3
Conversion of Class B Common Stock
.
(a)
Prior to the date of a Distribution, each outstanding share of Class B Common Stock, if any, shall be convertible, at the option of the holder thereof, into one (1) fully paid and non-assessable share of Class A Common Stock. Such right shall be exercised by the surrender to the Corporation or the transfer agent for the Common Stock (the “
Transfer Agent
”) of the certificate or certificates, if any (or, if such holder alleges that any such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate), representing the shares of Class B Common Stock to be converted at any time during normal business hours at the principal executive offices of the Corporation or at the office of the Transfer Agent, and delivery of a written notice from the holder of such shares stating that such holder desires to convert such shares, or a stated number of the shares represented by such certificate or certificates, if any, into an equal number of shares of Class A Common Stock and requesting that the Corporation or the Transfer Agent issue all of such shares of Class A Common Stock to the Person or Persons named in such notice. If required by the Corporation or the Transfer Agent, such notice shall be accompanied by instruments of transfer, in form satisfactory to the Corporation and to the Transfer Agent, duly executed by such holder or such holder’s duly authorized attorney, and transfer tax stamps or funds therefor if required pursuant to this
Section 4.3(a)
. To the extent permitted by law, such voluntary conversion shall be deemed to have been effected at 5:00 p.m. Eastern Time on the date of delivery of the items set forth above or such other time on such date as may be specified by the holder. The issuance of certificates, if any, for shares of Class A Common Stock upon conversion of shares of Class B Common Stock shall be made without charge to the holders of such shares for any stamp or other similar tax in respect of such issuance;
provided
,
however
, that if any such certificate is to be issued in a name other than that of the holder of the share or shares of Class B Common Stock converted, then the Person or Persons requesting the issuance thereof shall pay to the Corporation the amount of any tax that may be payable in respect of any transfer involved in such issuance or shall establish to the satisfaction of the Corporation that such tax has been paid or is not payable.
(b)
Prior to the date of a Distribution, each outstanding share of Class B Common Stock shall be automatically converted into one (1) fully paid and non-assessable share of Class A Common Stock upon any Transfer of such share of Class B Common Stock if, after such Transfer, such share of Class B Common Stock is not beneficially owned by a Dell Technologies Entity.
(c)
Prior to the date of a Distribution, each share of Class B Common Stock shall at such time as the number of shares of Class B Common Stock beneficially owned by the Dell Technologies Entities ceases to represent in the aggregate at least 10% of the then-outstanding shares of Common Stock, without any action on the part of the holders of shares of Class B Common Stock, automatically convert into one (1) fully paid and non-assessable share of Class A Common Stock. The holders of shares of Class B Common Stock so converted shall surrender any certificates formerly representing such shares (or, if such holder alleges that any such certificate has been lost, stolen or destroyed, a lost certificate affidavit and agreement reasonably acceptable to the Corporation to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, theft or destruction of such certificate) at
5
the office of the Corporation or any Transfer Agent, as applicable;
provided
,
however
, that the conversion shall not be conditioned upon the surrender of any such certificate (or lost certificate affidavit and agreement) and the failure to do so shall not affect the validity of the automatic conversion of the shares of Class B Common Stock.
(d)
Notwithstanding
Section 4.3(a)
,
Section 4.3(b)
or
Section 4.3(c)
, if any Dell Technologies Entity Transfers all or any portion of the Class B Common Stock to Dell Technologies stockholders or other security holders in a Distribution, the Transferred shares of Class B Common Stock shall not be converted into Class A Common Stock as a result of such Distribution and shall no longer be convertible into Class A Common Stock whether automatically, at the election of the holder of the Class B Common Stock or otherwise except as set forth in this
Section 4.3(d)
. For the purposes of this
Section 4.3(d)
, a Distribution shall be deemed to have occurred at the time shares of Class B Common Stock are first Transferred to stockholders or security holders of Dell Technologies following receipt of a certificate described in
Section 4.3(h)(2)
. Following a Distribution, the Corporation may submit for stockholder approval, subject to the conditions set forth in this
Section 4.3(d)
, a proposal to convert all outstanding shares of Class B Common Stock into shares of Class A Common Stock;
provided
,
however
, that the Board of Directors has previously received an opinion of counsel and/or a favorable private letter ruling from the Internal Revenue Service, in each case satisfactory to Dell Technologies in its sole and absolute discretion, which discretion shall be exercised in good faith solely to preserve the intended tax treatment of the Distribution (and in determining whether an opinion or ruling is satisfactory, Dell Technologies may consider, among other factors, the appropriateness of any underlying assumptions and representations if used as a basis for such opinion or ruling, and Dell Technologies may determine that no opinion or ruling would be acceptable to Dell Technologies), to the effect that such conversion will not affect the intended tax treatment of the Distribution. If the Board of Directors shall have received such an opinion or ruling, approval of such conversion may be submitted to a vote of the holders of the Common Stock. Approval of such conversion shall require the affirmative vote of the holders of a majority of the votes cast by the holders of the Class A Common Stock, voting as a separate class, and the affirmative vote of the holders of a majority of the votes cast by the holders of the Class B Common Stock, voting as a separate class, unless the Board of Directors (1) has determined that approval of such conversion by the affirmative vote of a majority of the votes cast by the holders of the Class A Common Stock and the holders of the Class B Common Stock, voting together as a single class, would not affect the intended tax treatment of the Distribution, subject to the receipt by the Board of Directors of an opinion of counsel or a favorable private letter ruling from the Internal Revenue Service regarding such intended tax treatment of the Distribution, and (2) shall have received the prior written consent thereto from Dell Technologies, in its sole and absolute discretion, which shall be exercised in good faith solely to preserve the intended tax treatment of the Distribution, in which case neither class of Common Stock shall be entitled to a separate class vote and approval of such conversion shall require the affirmative vote of the holders of a majority of the votes cast by the holders of the Class A Common Stock and the Class B Common Stock, voting together as a single class. Such conversion shall be effective at 5:00 p.m. Eastern Time on the date on which such approval is given at a meeting of stockholders called for such purpose. In the event of any Distribution, any outstanding shares of Class B Common Stock that are not distributed in such Distribution shall be automatically converted into an equal number of fully paid and non-assessable shares of Class A Common Stock in accordance with the terms of this Certificate of Incorporation upon such Distribution.
6
(e)
The Corporation shall provide notice of (1) any automatic conversion of outstanding shares of Class B Common Stock into shares of Class A Common Stock pursuant to
Section 4.3(b)
to holders of record of such shares of Class A Common Stock as soon as reasonably practicable following such conversion and (2) any automatic conversion of all outstanding shares of Class B Common Stock into shares of Class A Common Stock pursuant to
Section 4.3(c)
or
Section 4.3(d
) to all holders of record of such shares of Class B Common Stock as soon as reasonably practicable following such conversion;
provided
,
however
, that in the event of a conversion referred to in clause (2), the Corporation may satisfy such notice requirement by providing such notice prior to such conversion. Such notice shall be provided by any means then permitted by the DGCL;
provided
,
however
, that no failure to give such notice nor any defect therein shall affect the validity of the automatic conversion of any shares of Class B Common Stock into shares of Class A Common Stock.
(f)
Immediately upon conversion of shares of Class B Common Stock into shares of Class A Common Stock pursuant to the provisions of this
Section 4.3
, the rights of holders of such shares of Class B Common Stock as such shall cease, and such holders shall be treated for all purposes as having become the record owners of the shares of Class A Common Stock issued upon such conversion;
provided
,
however
, that if the date on which any share of Class B Common Stock is converted into a share of Class A Common Stock is after the record date for the determination of the holders of Class B Common Stock entitled to receive any dividend and prior to the date on which such dividend is to be paid to such holders, the holder of the share of Class A Common Stock issued upon such conversion will be entitled to receive such dividend on such payment date,
provided further
that to the extent that such dividend is payable in shares of Class B Common Stock, no such shares of Class B Common Stock shall be issued in payment thereof and such dividend shall instead be paid by the issuance of such number of shares of Class A Common Stock into which such shares of Class B Common Stock, if issued, would have been converted on such payment date.
(g)
Prior to a Distribution of any shares of Class B Common Stock, (1) holders of shares of Class B Common Stock may Transfer any or all of such shares held by them on the stock ledger of the Corporation only in connection with a Transfer that meets the requirements of
Section 4.3(h)
and (2) no Person other than Persons in whose names such shares of Class B Common Stock become registered on the stock ledger of the Corporation, or Transferees or successive Transferees who receive such shares of Class B Common Stock in connection with a Transfer that meets the requirements of
Section 4.3(h)
, shall have the status of a record owner or holder of such shares of Class B Common Stock or be recognized as such by the Corporation or be otherwise entitled to enjoy for such Person’s own benefit the special rights and powers of a holder of such shares of Class B Common Stock.
(h)
Prior to a Distribution of any shares of Class B Common Stock, shares of Class B Common Stock shall be Transferred on the stock ledger of the Corporation upon presentation at the office of the Secretary of the Corporation or the Transfer Agent (or at such additional place or places as may from time to time be designated by the Secretary or any Assistant Secretary of the Corporation) of proper transfer documents, accompanied by a certificate of the record holder thereof or its designee stating either that (1) such Transfer is to any Dell Technologies Entity or (2) such Transfer is to the stockholders or security holders of Dell Technologies in connection with a Distribution.
7
(i)
Prior to a Distribution of any shares of Class B Common Stock, every certificate, if any, representing such shares of Class B Common Stock shall bear a legend on its face substantially to the following effect:
“THE SHARES OF CLASS B COMMON STOCK REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED TO ANY PERSON IN CONNECTION WITH A TRANSFER THAT DOES NOT MEET THE QUALIFICATIONS SET FORTH IN SECTION 4.3 OF THE CERTIFICATE OF INCORPORATION OF PIVOTAL SOFTWARE, INC., AS IT MAY BE AMENDED AND/OR RESTATED FROM TIME TO TIME, AND NO PERSON WHO RECEIVES SUCH SHARES IN CONNECTION WITH A TRANSFER THAT DOES NOT MEET THE QUALIFICATIONS PRESCRIBED IN SUCH SECTION 4.3 IS ENTITLED TO OWN OR TO BE REGISTERED AS THE RECORD HOLDER OF SUCH SHARES OF CLASS B COMMON STOCK. UPON A TRANSFER OF ANY SHARES OF CLASS B COMMON STOCK REPRESENTED BY THIS CERTIFICATE THAT DOES NOT MEET THE QUALIFICATIONS SET FORTH IN SUCH SECTION 4.3, EACH SUCH TRANSFERRED SHARE OF CLASS B COMMON STOCK WILL AUTOMATICALLY CONVERT INTO ONE (1) FULLY PAID AND NON-ASSESSABLE SHARE OF CLASS A COMMON STOCK. EACH HOLDER OF THIS CERTIFICATE, BY ACCEPTING SUCH CERTIFICATE, ACCEPTS AND AGREES TO ALL OF THE FOREGOING.”
Prior to the date of a Distribution, if any shares of Class B Common Stock are uncertificated, the restrictions on Transfer and ownership set forth in
Section 4.3
shall be contained in the notice or notices given pursuant to the applicable provisions of the DGCL.
(j)
The Corporation shall not reissue or resell any shares of Class B Common Stock that are converted pursuant to this Certificate of Incorporation or otherwise acquired by the Corporation in any manner. The Corporation shall, from time to time, take such appropriate action as may be necessary to retire such shares and to reduce the authorized number of shares of Class B Common Stock accordingly.
Section 4.4
Preferred Stock
. Shares of Preferred Stock may be issued from time to time in one or more series. The Board of Directors 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 (except as may otherwise be required by
Article VI
or provided by the terms of any series of Preferred Stock then outstanding), by filing a certificate pursuant to the applicable law of the State of Delaware (a “
Certificate of Designation
”) setting forth such resolution or resolutions 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
8
of Directors with respect to each series of Preferred Stock shall include, but not be limited to, the determination of the following:
(a)
the designation of such series, which may be by distinguishing number, letter or title;
(b)
the number of shares of such series, which number the Board of Directors may thereafter (except where otherwise provided in the Certificate of Designation) increase or decrease (but not below the number of shares thereof then outstanding);
(c)
the amounts or rates at which dividends, if any, will be payable on shares of such series, the preferences, if any, of shares of such series in respect of dividends, and whether such dividends shall be cumulative or noncumulative;
(d)
the dates on which dividends, if any, shall be payable;
(e)
the redemption rights and price or prices, if any, for shares of such series;
(f)
the terms and amount of any sinking fund, if any, provided for the purchase or redemption of shares of such series;
(g)
the amounts payable on, and the preferences, if any, of shares of such series in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation;
(h)
whether the shares of such 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 or other person, 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;
(i)
restrictions on the issuance of shares of the same series or any other series;
(j)
the voting rights, if any, of the holders of shares of such series generally or upon specified events; and
(k)
any other powers, preferences and relative, participating, optional or other special rights of shares of such series, and any qualifications, limitations or restrictions thereof, all as may be determined from time to time by the Board of Directors and stated in the resolution or resolutions providing for the issuance of such class or series.
Without limiting the generality of the foregoing, the resolution or resolutions providing for issuance of any series of Preferred Stock may provide that such series shall be superior to, rank equally with or be junior to any other series of Preferred Stock to the extent permitted by law.
9
Any shares of any series of Preferred Stock which may be redeemed, purchased or acquired by the Corporation may be reissued except as otherwise provided by law or by the terms of any Certificate of Designation for such series of Preferred Stock.
Section 4.5
Provisions Applicable to Common Stock and Preferred Stock
.
(a)
No Preemptive Rights
. No stockholder shall be entitled to any preemptive right to subscribe for, purchase or receive any part of any new or additional issue of Stock of any class or series of the Corporation, whether now or hereafter authorized, or of bonds, debentures or other securities convertible into or exchangeable for Stock of the Corporation solely by virtue of holding such shares.
(b)
No Cumulative Voting
. No stockholder shall be entitled to exercise any right of cumulative voting.
ARTICLE V
RELATED ACTIVITIES AND CORPORATE OPPORTUNITIES
Section 5.1
Generally
. This
Article V
anticipates the possibility that (1) one or more Specified Entities, individually or together, may be, directly or indirectly, a controlling, majority or significant stockholder of the Corporation, (2) certain Specified Entity Officials also may serve as Corporation Officials, (3) the Corporation Affiliates, on the one hand, and the Specified Entities, on the other hand, may, from time to time, (a) engage in the same, similar or related activities or lines of business or other business activities that overlap or compete with those of the other and (b) have an interest in the same areas of corporate opportunities, and (4) benefits may be derived by the Corporation Affiliates through their contractual, corporate and business relations with the Specified Entities. The provisions of this
Article V
shall, to the fullest extent permitted by law, define the conduct of certain affairs of the Corporation Affiliates and the Corporation Officials as they may involve the Specified Entities, and the powers, rights, duties and liabilities of the Corporation Affiliates and the Corporation Officials in connection therewith. Notwithstanding anything in this
Article V
to the contrary, as between EMC and VMware, VMware’s rights under this
Article V
remain subject to Article V of VMware’s Amended and Restated Certificate of Incorporation (or any successor provisions).
Section 5.2
Contracts
. The Corporation from time to time may enter into and perform, and cause or permit any Corporation Affiliate to enter into and perform, one or more agreements (or amendments or modifications to pre-existing agreements) with any one or more of the Specified Entities pursuant to which any one or more of the Corporation Affiliates, on the one hand, and any one or more of the Specified Entities, on the other hand, agree to engage in transactions of any kind or nature, or agree to compete, or to refrain from competing or to limit or restrict their competition, with each other (or with any one or more other Specified Entities or Corporation Affiliates, respectively), including to allocate and to cause Corporation Officials and Specified Entity Officials (including any person who is both a Corporation Official and a Specified Entity Official) to allocate or refer opportunities between such Corporation Affiliates and one or more Specified Entities. To the fullest extent permitted by law, neither any such agreement, nor the performance thereof by any Corporation Affiliate or Specified Entity, shall be
10
considered contrary to (1) any fiduciary duty that any Specified Entity may owe to any Corporation Affiliate or its stockholders by reason of any Specified Entity being, directly or
indirectly, a controlling, majority or significant stockholder of any such Corporation Affiliate or participant in the control of any such Corporation Affiliate or (2) any fiduciary duty that any Corporation Official who is also a Specified Entity Official may owe to any Corporation Affiliate or its stockholders. To the fullest extent permitted by law, no Specified Entity, by reason of being, directly or indirectly, a controlling, majority or significant stockholder of any Corporation Affiliate or participant in the control of any Corporation Affiliate, shall have or be under any fiduciary duty to refrain from entering into any agreement or participating in any transaction referred to above, and no Corporation Official who is also a Specified Entity Official shall have or be under any fiduciary duty to any Corporation Affiliate or its stockholders to refrain from acting on behalf of any Corporation Affiliate or any Specified Entity in respect of any such agreement or transaction or performing any such agreement in accordance with its terms.
Section 5.3
Duties of Specified Entities
. Except as otherwise agreed in writing between the Corporation, on the one hand, and a Specified Entity on the other hand, the Specified Entities shall, to the fullest extent permitted by law, have no duty to refrain from (1) engaging in the same or similar activities or lines of business as any Corporation Affiliate, (2) doing business with any client, customer or vendor of any Corporation Affiliate or (3) employing, or otherwise engaging or soliciting for such purpose, any officer, director or employee of any Corporation Affiliate. To the fullest extent permitted by law, no Specified Entity shall be deemed to have breached its fiduciary duties, if any, to any Corporation Affiliate or its stockholders solely by reason of engaging in any activity described in clauses (1) through (3) of the immediately preceding sentence. If any Specified Entity is offered, or acquires knowledge of, a potential transaction or business opportunity that is or may be a corporate opportunity for any Corporation Affiliate, the Corporation, on behalf of itself and each Corporation Affiliate, to the fullest extent permitted by law, renounces any interest or expectancy in such potential transaction or business opportunity or being offered an opportunity to participate therein and waives any claim that such potential transaction or business opportunity constituted a corporate opportunity that should have been presented to any Corporation Affiliate unless such corporate opportunity is subject to
Section 5.4(c)
. In the case of any potential transaction or business opportunity in which the Corporation has renounced its interest and expectancy in accordance with the immediately preceding sentence, the Specified Entities shall, to the fullest extent permitted by law, not be liable to any Corporation Affiliate or its stockholders for breach of any fiduciary duty as a direct or indirect stockholder of any Corporation Affiliate by reason of the fact that any one or more of the Specified Entities pursues or acquires such potential transaction or business opportunity for itself, directs such potential transaction or business opportunity to another Person, or otherwise does not communicate information regarding such potential transaction or business opportunity to the Corporation or any Corporation Affiliate.
Section 5.4
Officials
.
(a)
If a Corporation Official who is also a Specified Entity Official is offered, or acquires knowledge of, a potential transaction or business opportunity that is or may be a corporate opportunity for any Corporation Affiliate, the Corporation, on behalf of itself and each
11
Corporation Affiliate, to the fullest extent permitted by law, renounces any interest or expectancy in such potential transaction or business opportunity or being offered an opportunity to participate therein and waives any claim that such potential transaction or business opportunity
constituted a corporate opportunity that should have been presented to the Corporation or any such Corporation Affiliate unless such corporate opportunity is subject to
Section 5.4(c)
.
(b)
If a Corporation Official who is also a Specified Entity Official is offered, or acquires knowledge of, a potential transaction or business opportunity that is or may be a corporate opportunity for any Corporation Affiliate in any manner, except as provided in
Section 5.4(c
), such Corporation Official shall have no duty to communicate or present such potential transaction or business opportunity to the Corporation or any Corporation Affiliate and shall, to the fullest extent permitted by law, not be liable to any Corporation Affiliate or its stockholders for breach of any fiduciary duty as a Corporation Official, including, without limitation, by reason of the fact that any one or more of the Specified Entities pursues or acquires such potential transaction or business opportunity for itself, directs such potential transaction or business opportunity to another Person, or otherwise does not communicate information regarding such potential transaction or business opportunity to the Corporation or any Corporation Affiliate.
(c)
Notwithstanding anything to the contrary in this
Article V
the Corporation does not renounce any interest or expectancy it may have in any corporate opportunity that is expressly offered to any Corporation Official in writing solely in his or her capacity as a Corporation Official.
Section 5.5
Amendments
. No amendment or repeal of this
Article V
shall apply to or have any effect on the liability or alleged liability of any Specified Entity or any Corporation Official for or with respect to any corporate opportunity that such Specified Entity or such Corporation Official was offered, or of which such Specified Entity or such Corporation Official acquired knowledge, prior to such amendment or repeal.
Section 5.6
Scope
. In addition to, and notwithstanding the foregoing provisions of this
Article V
, a potential transaction or business opportunity (1) that the Corporation Affiliates are not financially able, contractually permitted or legally able to undertake or (2) that is, from its nature, not in the line of the business of the Corporation Affiliates, is of no practical advantage to any Corporation Affiliate or is one in which no Corporation Affiliate has any interest or reasonable expectancy, shall not, in any such case, be deemed to constitute a corporate opportunity belonging to the Corporation or any other Corporation Affiliate, and the Corporation, on behalf of itself and each other Corporation Affiliate, to the fullest extent permitted by law, hereby renounces any interest or expectancy therein or being offered an opportunity to participate therein.
Section 5.7
Notice
. Any Person purchasing or otherwise acquiring or holding any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this
Article V
.
Section 5.8
Termination
. Notwithstanding any other provision of this Certificate of Incorporation to the contrary, the provisions of
Article V
shall automatically
12
terminate, expire and have no further force and effect with respect to a Specified Entity and any of its Specified Entity Officials from and after the later of (1) the date that such Specified Entity, together with such Specified Entity’s Affiliates, ceases to beneficially own in the aggregate shares of capital stock of the Corporation representing at least 10% of the Total Voting Power and (2) the date upon which no Corporation Official is a Specified Entity Official;
provided
,
however
, that such automatic termination, expiration and failure to have further force and effect shall not apply to or have any effect on the liability or alleged liability of any Specified Entity, Specified Entity Official or Corporation Official for or with respect to any
corporate opportunity that such Specified Entity, Specified Entity Official or Corporation Official was offered, or of which such Specified Entity, Specified Entity Official or Corporation Official acquired knowledge, prior to such automatic termination, expiration and failure to have further force and effect.
ARTICLE VI
CONSENT OF HOLDERS OF CLASS B COMMON STOCK
Section 6.1
Consent of Holders of Class B Common Stock
(a)
In addition to any other vote required by law or by this Certificate of Incorporation, until the earlier of (1) the first date on which the Dell Technologies Entities cease to beneficially own in the aggregate shares of capital stock of the Corporation representing at least 30% of the Total Voting Power and (2) such time as no shares of Class B Common Stock are outstanding, the prior affirmative vote (including by written consent) of the holders of a majority of the outstanding shares of the Class B Common Stock, voting as a separate class, shall be required to authorize the Corporation to, or to authorize or permit any Subsidiary of the Corporation to:
(i)
adopt or implement any stockholder rights plan or similar takeover defense measure;
(ii)
enter into any (A) Sale Transaction or (B) sales, transfers or licenses of any Subsidiary, division, operation, business, line of business or intellectual property (other than intellectual property licensing in the ordinary course of business) or patent portfolio (whether by merger, amalgamation, stock sale, asset sale, reorganization, consolidation, share exchange, business combination or otherwise), in each case, held by or of the Corporation or its Subsidiaries to any Person other than the Corporation or one or more Wholly-Owned Subsidiaries for aggregate consideration in all such transactions in excess of $100,000,000 in any calendar-year period;
(iii)
directly or indirectly acquire Stock, Stock Equivalents or assets (including, without limitation, any business or operating unit) of any Person (other than the Corporation or its Subsidiaries), other than capital assets, in each case in a single transaction, or series of related transactions, involving consideration (whether in cash, securities, assets or otherwise, and including Indebtedness assumed by the Corporation or any of its Subsidiaries and Indebtedness of any entity so acquired) paid or delivered by the Corporation and its Subsidiaries in excess of $250,000,000;
provided
,
however
, this
13
Section 6.1(a)(iii
) shall not apply and shall not require the prior affirmative vote of the holders of Class B Common Stock hereunder in connection with acquisitions of securities pursuant to portfolio investment decisions in the ordinary course of business or transactions to which the Corporation or one or more Wholly-Owned Subsidiaries are the only parties;
(iv)
issue any Stock or any Stock Equivalents, except (A) the issuance of shares of Stock of a Wholly-Owned Subsidiary to the Corporation or another Wholly-Owned Subsidiary, (B) the issuance of Stock upon the conversion, exchange or exercise of any outstanding Stock Equivalents or (C) the issuance of shares of Class A Common Stock, options to purchase Class A common stock or any other stock option, stock appreciation right, restricted stock unit, restricted stock or other equity award or other right to purchase or that is settled in Class A Common Stock (each, an “
Equity Award
”), in each case for this clause (C) pursuant to a benefit or compensation plan, including an employee equity or pension plan approved pursuant to
Section 6.1(a)(xi)
, or a dividend reinvestment plan approved by the Board of Directors (
provided
,
however
, that notwithstanding this clause (C), the prior affirmative vote of the holders of a majority of the outstanding shares of the Class B common stock hereunder, voting as a separate class, shall be required to authorize the aggregate amount of Equity Awards to be granted in any fiscal year);
(v)
dissolve, liquidate or wind up the Corporation;
(vi)
declare dividends on any class or series of Corporation capital stock, other than dividends payable solely to the Corporation or to a Wholly-Owned Subsidiary;
(vii)
enter into any arrangement or agreement with any Person which the Board of Directors determines to be on terms exclusionary to any member of the Dell Technologies Group or that are exclusive to such Person, where such Person is offering or proposes to offer products or services that are substantially equivalent to products and services offered by any member of the Dell Technologies Group;
(viii)
approve, enter into, or adopt, any amendment, modification, repeal or restatement of any Organizational Document of the Corporation or any Subsidiary of the Corporation, whether directly or indirectly, or by merger, consolidation or otherwise, other than any of the foregoing to (A) increase the authorized number of shares of any class of Stock in connection with an issuance thereof approved pursuant to
Section 6.1(a)(iv)
, and/or (B) any amendment, modification, repeal or restatement that is ministerial or administrative in nature and does not otherwise adversely affect any holder of shares of the Class B Common Stock;
(ix)
(A) acquire any Person, business, line of business or intellectual property portfolio (other than ordinary course intellectual property licensing) (whether by merger, amalgamation, stock purchase, asset purchase, reorganization, consolidation, share exchange, business combination or otherwise), or any investment in any securities or Indebtedness of any Person (other than any then-existing Wholly-Owned Subsidiary and other than cash and cash equivalents and other than liquid investments in connection with
14
ordinary course cash management and pension plan asset investment and similar arrangements), including any joint venture or non-Wholly-Owned Subsidiary, for aggregate consideration payable by the Corporation or any of its Subsidiaries in all such transactions in excess of $250,000,000 in any calendar-year period, and/or (B) other than in connection with a transaction permitted by clause (A) of this
Section 6.1(a)(ix)
, create, incorporate or form any non-Wholly-Owned Subsidiary, other than non-U.S. Subsidiaries only to the extent legally required, in jurisdictions which legally require
de minimis
ownership of equity securities by residents, natural persons or non-Affiliates;
(x)
(A) incur, assume or guarantee any Indebtedness, including for this purpose any receivables, warehouse, securitization or other facility or off-balance sheet financing, in excess of $200,000,000 in the aggregate for all such Indebtedness, including any such financing, other than (x) Indebtedness incurred for liquidity or global cash management purposes in the ordinary course of business, the repayment term of which does not exceed twelve (12) months and (y) ordinary course security deposits and customer or supplier arrangements (but, for the avoidance of doubt, not excluding receivables facilities), and/or (B) any amendment, modification, restatement, termination or refinancing of any existing Indebtedness or any existing off-balance-sheet financing of the Corporation or its Subsidiaries;
(xi)
approve, enter into, adopt, terminate, amend or modify any employee equity or pension plan, other than administrative amendments or modifications thereof or amendments or modifications thereof required by applicable law;
(xii)
enter into any settlement or compromise of any actual or threatened litigation, arbitration, audit, mediation or regulatory, administrative or governmental investigation, inquiry or proceeding that (A) would result in a payment by the Corporation and/or its Subsidiaries in excess of $100,000,000, or (B) would impose a limitation upon the operations of, or other equitable remedy upon, Corporation or any of its Subsidiaries, in each case that would reasonably be expected to have a material adverse effect on the Corporation and its Subsidiaries, taken as a whole; or
(xiii)
enter into any commercial agreement or capital investment not otherwise referred to in this
Section 6.1
involving consideration payable, or committed to be paid, by the Corporation or any of its Subsidiaries to any Person (other than Corporation or any Wholly-Owned Subsidiaries) in excess of $100,000,000.
(b)
Neither the Corporation nor any of its Subsidiaries shall undertake any action or conduct that would have the effect of indirectly engaging the Corporation or any of its Subsidiaries in activities that the provisions of this
Section 6.1
would otherwise prohibit.
(c)
For purposes of this
Article VI
, “
Subsidiary
” means, as to any Person, a corporation, limited liability company, joint venture, partnership, trust, association or other entity in which such Person (1) beneficially owns, either directly or indirectly, more than 50% of (i) the total combined voting power of all classes of voting securities of such entity, (ii) the total combined equity interests, or (iii) the capital or profits interest, in the case of a partnership, or (2)
15
otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body of such entity.
(d)
Any Person 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 VI
.
ARTICLE VII
BOARD OF DIRECTORS
Section 7.1
Powers; Number
. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The total number of directors constituting the entire Board of Directors shall, as of the date this Certificate of Incorporation becomes effective, be eleven (11), and thereafter the then-authorized number of directors (the “
Entire Board of Directors
”) shall be fixed exclusively by one or more resolutions adopted from time to time solely by the affirmative vote of a majority of the votes entitled to be cast by the directors then in office. During any period in which the holders of any series of Preferred Stock have the right to elect additional directors as required by law or fixed pursuant to the provisions of
Article IV
or any Certificate of Designation, then upon commencement and for the duration of the period during which such right continues (1) the then-otherwise total authorized number of directors of the Corporation shall automatically be increased by such specified number of directors, and the holders of such Preferred Stock shall be entitled to elect the additional directors so provided for or fixed pursuant to such provisions, and (2) each such additional director shall serve until such director’s successor shall have been duly elected and qualified, or until such director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to such director’s death, resignation, retirement, disqualification or removal. Except as otherwise provided by the Board of Directors in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions of such series, the terms of office of all such additional directors elected by the holders of such series, or elected to fill any vacancies resulting from the death, resignation, retirement, disqualification or removal of such additional directors, shall forthwith terminate and the total and authorized number of directors of the Corporation shall be reduced accordingly.
Section 7.2
Group I and Group II Directors
. The Board of Directors, other than with respect to any directors who may be elected by the holders of any series of Preferred Stock, shall consist of the Group II directors (the “
Group II Directors
”) and, so long as any shares of Class B Common Stock are outstanding, the Group I directors (the “
Group I Directors
”), each as specified below.
(a)
Group I Directors
. So long as any shares of Class B Common Stock are outstanding, the holders of shares of Class B Common Stock, voting as a separate class, shall be entitled to elect a number of Group I Directors equal to the minimum whole number of directors that would constitute at least 80% of the total number of directors of the Entire Board of Directors. The holders of shares of Class A Common Stock shall not be entitled to vote on the election of any Group I Director. The total number of directors constituting the Group I directors
16
(the “
Group I Directorships
”) shall, as of the date this Certificate of Incorporation becomes effective, be nine (9), and thereafter the then-authorized number of Group I Directorships shall be fixed exclusively by one or more resolutions adopted from time to time solely by the affirmative vote of a majority of the votes entitled to be cast by the directors then in office;
provided
,
however
, that any change to the number of Group I Directorships must be consistent with the first sentence of this
Section 7.2(a
).
(i)
Vacancies
. Any newly-created directorship that results from an increase in the number of Group I Directors and any vacancy on the Board of Directors resulting from death, resignation, retirement, disqualification, removal or other cause relating to a Group I Director shall be filled by the affirmative vote of a majority of the votes entitled to be cast by the remaining Group I Directors then in office, even though less than a quorum of the Board of Directors or by the sole remaining Group I Director;
provided
,
however
, that if any such newly-created directorship or vacancy was caused by an action of the holders of shares of Class B Common Stock, such vacancy shall be filled by the holders of shares of Class B Common Stock, voting as a separate class;
provided further
, that at any time when the Dell Technologies Affiliates do not beneficially own in the aggregate shares of Class B Common Stock representing a majority of the votes entitled to be cast in the election of a Group I Director, any such newly-created directorship and any vacancy shall be filled only by the affirmative vote of a majority of the votes entitled to be cast by the remaining Group I Directors then in office, even though less than a quorum of the Board of Directors, or by the sole remaining Group I Director. Any director so appointed shall hold office for a term that shall coincide with the remaining term of such class to which such director shall have been appointed or until a successor to such newly-appointed director is duly elected and qualified.
(ii)
Removal
. Any Group I Director may be removed at any time either with or without cause by the affirmative vote of the holders of a majority of the outstanding shares of Class B Common Stock, voting as a separate class;
provided
,
however
, that at any time when the Dell Technologies Affiliates do not beneficially own in the aggregate shares of Class B Common Stock representing a majority of the votes entitled to be cast in the election of a Group I Director, no Group I Director may be removed except for cause by the affirmative vote of the holders of a majority of the outstanding shares of the Class B Common Stock, voting as a separate class. The shares of Class A Common Stock shall not be entitled to any votes with respect to the removal of a Group I Director.
(iii)
Director Voting
. Each Group I Director shall be entitled to cast one (1) vote on all matters to which the directors are entitled to vote;
provided
,
however
, that at any time or from time to time any Group I Directorship is vacant, one (1) (and only one (1)) of the existing Group I Directors, which Group I Director shall be designated in writing by Dell Technologies (such Group I Director, the “
Supervoting Group I Director
”), shall be entitled to cast, on all matters upon which a vote or consent of the Board of Directors is to be taken, a number of votes equal to one (1) plus the number of vacant Group I Directorships then existing. For the avoidance of doubt, to the extent all Group I Directorships are filled, the votes entitled to be cast by each director, including the Supervoting Group I Director and each other Group I Director, shall be one (1) vote. In no case shall the aggregate votes entitled to be cast by the Board of Directors or the
17
sum of the number of the Group I Directorships and Group II Directorships exceed the number of directors constituting the Entire Board of Directors.
(b)
Group II Directors
. The total number of authorized Group II Directors (the “
Group II Directorships
”) shall, as of the date this Certificate of Incorporation becomes effective, be two (2), and thereafter the then-authorized number of Group II Directorships shall be fixed exclusively by one or more resolutions adopted from time to time solely by the affirmative vote of a majority of the votes entitled to be cast by the directors then in office;
provided
,
however
, that any change to the number of Group II Directorships must be consistent, or accompanied simultaneously with a change that would be consistent, with the first sentence of
Section 7.2(a)
, subject to
Section 7.2(c)
;
provided further
that the number of Group II Directorships shall in no event be reduced below one (1). Notwithstanding the provisions of
Section 4.2(b)(i)
, the holders of the Class A Common Stock and the Class B Common Stock shall each be entitled to one (1) vote in person or by proxy for each share of Common Stock standing in each such holder’s name on the books of the Corporation in any election of a Group II Director and such holders of Class A Common Stock and Class B Common Stock shall vote together as a single class in any such election.
(i)
Vacancies
. Any newly-created Group II Directorship that results from an increase in the number of Group II Directors and any vacancy on the Board of Directors resulting from death, resignation, retirement, disqualification, removal or other cause relating to a Group II Director shall be filled by the affirmative vote of a majority of the votes entitled to be cast by the remaining directors then in office, even though less than a quorum of the Board of Directors or by the sole remaining director;
provided
,
however
, that if any such newly-created directorship or vacancy was caused by an action of the stockholders, such vacancy shall be filled by the stockholders (with each share of Class A Common Stock and Class B Common Stock having one (1) vote and voting as a single class with respect to such matter, notwithstanding the provisions of
Section 4.2(b)(i)
);
provided further
, at any time when the Dell Technologies Affiliates do not beneficially own in the aggregate shares of capital stock of the Corporation representing a majority of the votes entitled to be cast in the election of a Group II Director, any such newly-created directorship and any vacancy shall be filled only by the affirmative vote of a majority of the votes entitled to be cast by the remaining directors then in office, even though less than a quorum of the Board of Directors, or by the sole remaining director. Any director so appointed shall hold office for a term that shall coincide with the remaining term of such class to which such director shall have been appointed pursuant to
Section
7.3 or until a successor to such newly-appointed director is duly elected and qualified.
(ii)
Removal
. Notwithstanding the provisions of
Section 4.2(b)(i)
, any or all of the Group II Directors may be removed at any time either with or without cause by the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes entitled to be cast to elect any such Group II Director (with each share of Class A Common Stock and Class B Common Stock having one (1) vote and voting as a single class with respect to such matter, notwithstanding the provisions of
Section 4.2(b)(i)
);
provided
,
however
, that at any time when the Dell Technologies Affiliates do not beneficially own in the aggregate shares of capital stock of the Corporation representing a majority of the votes entitled to be cast in the election of a
18
Group II Director, no Group II Director may be removed except for cause by the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the votes entitled to be cast to elect any such Group II Director (with each share of Class A Common Stock and Class B Common Stock having one (1) vote and voting as a single class with respect to such matter, notwithstanding the provisions of
Section 4.2(b)(i)
).
(iii)
Director Voting
. Each Group II Director shall be entitled to cast one (1) vote on all matters to which the directors are entitled to vote.
(iv)
Preferred Stock Directors
. In the event that the rights of any series of Preferred Stock to elect directors would preclude the holders of Class A Common Stock and the holders of Class B Common Stock, voting together as a single class, from electing at least one Group II Director, the Board of Directors shall increase the number of directors prior to the issuance of such Preferred Stock to the extent necessary to allow such holders of Common Stock to elect at least one (1) Group II Director in accordance with the provisions of this
Article VII
.
(c)
Sunset Provision
. At any time that there are no shares of Class B Common Stock outstanding (whether through conversion to Class A Common Stock pursuant to
Section 4.3
or otherwise), all Group I Directors shall be automatically designated as Group II Directors, the number of Group II Directorships shall automatically be increased by the number of former Group I Directorships to equal the number of directors on the Entire Board of Directors, and the provisions of
Section 7.2(a)
shall automatically terminate and cease to have any effect. In such event, the term of any former Group I Director shall not be affected or shortened and such Group I Director will continue in office as a Group II Director.
(d)
Miscellaneous
. No decrease in the number of directors shall shorten the term of any incumbent director. To the extent that this Certificate of Incorporation provides that any director shall have more or less than one (1) vote on any matter, every reference in this Certificate of Incorporation or the Bylaws (1) to a majority or other proportion of directors, shall refer to a majority or other proportion of the votes of the directors, and (2) to a majority of votes entitled to be cast by the directors then in office, shall include all votes entitled to be cast by the Supervoting Group I Director. Notwithstanding the foregoing or anything to contrary in this Certificate of Incorporation, each director when serving on a committee or subcommittee of the Board of Directors shall be entitled to cast that number of votes in respect of the total votes on any matter coming before such committee or subcommittee as shall be specified pursuant to the Bylaws.
Section 7.3
Classified Board
. The Board of Directors, other than those directors elected by the holders of any series of Preferred Stock, shall be divided into three (3) classes, designated Class I, Class II and Class III, with each class consisting, as nearly as may be practicable, of one-third of the total number of directors constituting the Entire Board of Directors. Each director shall serve for a term ending on the date of the third annual meeting of stockholders next following the annual meeting at which such director was elected;
provided
,
however
, that directors initially designated as Class I directors shall serve for a term ending on the date of the first annual meeting of stockholders following the date on which the Class A
19
Common Stock is first publicly traded (the “
IPO Date
”), directors initially designated as Class II directors shall serve for a term ending on the date of the second annual meeting of stockholders following the IPO Date, and directors initially designated as Class III directors shall serve for a term ending on the date of the third annual meeting of stockholders following the IPO Date. Notwithstanding the foregoing, each director shall hold office until such director’s successor shall have been duly elected and qualified or until such director’s earlier death, resignation, retirement, disqualification or removal. In the event of any change in the number of directors, the Board of Directors shall apportion any newly created directorships among, or reduce the number of directorships in, such class or classes as shall equalize, as nearly as possible, the number of directors and the respective number of Group I Directors and Group II Directors in each class. In no event will a decrease in the number of directors shorten the term of any incumbent director. The Board of Directors is authorized to assign directors already in office to Class I, Class II or Class III.
Section 7.4
Directors Elected by Holders of Preferred Stock
. Notwithstanding anything else contained herein, whenever the holders of one or more series of Preferred Stock shall have the right, voting separately as a series, to elect directors, the election, term of office, filling of vacancies, removal and other features of such directorships shall be governed by the terms of such series of Preferred Stock, including pursuant to a Certificate of Designation, adopted by resolution or resolutions adopted by the Board of Directors pursuant to
Section 4.4
, and such directors so elected shall not be subject to the provisions of this
Article VII
unless otherwise provided therein.
Section 7.5
No Written Ballot
. Elections of the members of the Board of Directors need not be by written ballot unless the Bylaws shall so provide.
ARTICLE VIII
STOCKHOLDER ACTION
Section 8.1
Written Consent
. At any time when the Dell Technologies Affiliates beneficially own in the aggregate shares of capital stock of the Corporation representing a majority of the Total Voting Power, any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding capital stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting of stockholders at which all shares entitled to vote thereon were present and voted. At any time when the Dell Technologies Affiliates do not beneficially own in the aggregate shares of capital stock of the Corporation representing a majority of the Total Voting Power, any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing by stockholders;
provided
,
however
, that (1) any approval required by
Section 6.1
may be given by written consent and (2) any action required or permitted to be taken by the holders of any series of Preferred Stock, voting separately as a series or together with the holders of one or more other series of Preferred Stock, may be taken without
20
a meeting, without prior notice and without a vote, to the extent expressly so provided by the applicable Certificate of Designation relating to such series of Preferred Stock.
Section 8.2
Special Meetings
. Except as otherwise required by law or fixed pursuant to
Article IV
or any Certificate of Designation relating to the rights of the holders of any series of Preferred Stock, special meetings of stockholders of the Corporation may be called only by (1) the Chairperson of the Board of Directors, (2) the Board of Directors or the Secretary of the Corporation pursuant to a resolution adopted by the affirmative vote of a majority of the votes entitled to be cast by the directors then in office or (3) Dell Technologies, so long as the Dell Technologies Affiliates beneficially own in the aggregate shares of capital stock of the Corporation representing a majority of the Total Voting Power. No business other than that stated in the Corporation’s notice of a special meeting of stockholders (or any supplement thereto) shall be transacted at such special meeting. No special meeting of stockholders called by Dell Technologies may be postponed, recessed, rescheduled or cancelled by the Corporation without the prior written consent of Dell Technologies.
ARTICLE IX
BYLAWS
In furtherance and not in limitation of the powers conferred by law, the Board of Directors is expressly authorized and empowered to adopt, amend and repeal the Bylaws.
Subject to the rights of holders of any series of Preferred Stock then outstanding, in furtherance and not in limitation of the powers conferred by law, so long as the Dell Technologies Affiliates beneficially own in the aggregate shares of capital stock of the Corporation representing a majority of the Total Voting Power, the Bylaws may be amended, altered or repealed and new bylaws made by the stockholders, in addition to any other vote otherwise required by applicable law or this Certificate of Incorporation, by the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the Total Voting Power. At any time when the Dell Technologies Affiliates do not beneficially own in the aggregate shares of capital stock of the Corporation representing a majority of the Total Voting Power, the Bylaws may be amended, altered or repealed and new bylaws made by the stockholders, in addition to any other vote otherwise required by applicable law or this Certificate of Incorporation, by the affirmative vote of the holders of shares of capital stock of the Corporation representing not less than 66
2
/
3
% of the Total Voting Power.
ARTICLE X
LIMITATIONS ON LIABILITY AND INDEMNIFICATION
Section 10.1
Exculpation
. A director of this Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the DGCL as the same exists or may hereafter be amended. Any repeal or modification of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation existing hereunder with respect to any act or omission occurring prior to such repeal or modification.
21
Section 10.2
Indemnity
. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any individual (and the heirs, executors or administrators of such individual) (a “
Covered Person
”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “
proceeding
”), by reason of the fact that he or she, or an individual for whom he or she is the legal representative, is or was a director or officer of the Corporation, or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a limited liability company, partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including attorneys’ fees and expenses, judgments, fines, amounts to be paid in settlement and excise payments or penalties arising under the Employee Retirement Income Security Act of 1974 (“
ERISA
”)) reasonably incurred by such Covered Person in connection therewith, and such indemnification shall continue as to an individual who has ceased to be a director or officer and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the preceding sentence, the Corporation shall be required to indemnify a Covered Person in connection with a proceeding (or part thereof) commenced by such Covered Person only if the commencement of such proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors. The Corporation may, by the action of the Board of Directors, provide indemnification to employees and agents of the Corporation with the same scope and effect as the foregoing indemnification of directors and officers.
Section 10.3
Expenses
. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees and expenses) incurred by a Covered Person in defending any proceeding in advance of its final disposition,
provided
,
however
, that such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified under this
Article X
or otherwise. The rights contained in this
Section 10.3
shall inure to the benefit of a Covered Person’s heirs, executors and administrators. By action of the Board of Directors, the Corporation may advance expenses to employees and agents of the Corporation with the same scope and effect as the foregoing rights to advancement of expenses of directors and officers.
Section 10.4
Non-Exclusivity
. The rights conferred on any Covered Person by this
Article X
shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, the Bylaws, agreement, vote of stockholders or disinterested directors or otherwise. This
Article X
shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to individuals other than Covered Persons, to a greater extent or in a manner otherwise different than provided for in this
Article X
when and as authorized by appropriate corporate action.
22
Section 10.5
Insurance
. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such Person against such expense, liability or loss under the DGCL.
Section 10.6
No Duplication
. The Corporation’s obligation, if any, to indemnify or to advance expenses to any Covered Person who was or is serving at its request as a director, officer, employee or agent of another corporation, limited liability company, partnership, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such Covered Person has been paid as indemnification or advancement of expenses from such other corporation, limited liability company, partnership, joint venture, trust, enterprise or non-profit enterprise.
Section 10.7
Severability
. If this
Article X
or any portion hereof will be invalidated on any ground by any court of competent jurisdiction, then the Corporation will nevertheless indemnify each Covered Person entitled to indemnification under
Section 10.2
hereof as to all expense, liability and loss (including attorneys’ fees and related disbursements, judgments, fines, ERISA excise taxes and penalties, penalties and amounts paid or to be paid in settlement) actually and reasonably incurred or suffered by such Covered Person and for which indemnification is available to such Covered Person pursuant to this
Article X
to the fullest extent permitted by any applicable portion of this
Article X
that shall not have been invalidated and to the fullest extent permitted by applicable law.
Section 10.8
Preservation of Rights
. Neither the amendment nor repeal of this
Article X
, nor the adoption of any provision of this Certificate of Incorporation or the Bylaws, nor, to the fullest extent permitted by the DGCL, any modification of law, shall adversely affect any right or protection of any person granted pursuant to this
Article X
existing at, or arising out of or related to any event, act or omission that occurred prior to, the time of such amendment, repeal, adoption or modification (regardless of when any proceeding (or part thereof) relating to such event, act or omission arises or is first threatened, commenced or completed).
ARTICLE XI
EXCLUSIVE FORUM
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 (1) any derivative action or proceeding brought on behalf of the Corporation, (2) any action asserting a claim of breach of a fiduciary duty owed by, or other wrongdoing by, any director, officer, employee or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (3) any action asserting a claim arising pursuant to any provision of the DGCL or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware or (4) any action asserting a claim governed by the internal affairs doctrine. Any Person purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this
Article XI
.
23
ARTICLE XII
BUSINESS COMBINATIONS
The Corporation hereby elects not to be governed by Section 203 of the DGCL until such time as the Dell Technologies Affiliates cease to beneficially own in the aggregate shares of capital stock of the Corporation representing at least 10% of the Total Voting Power, whereupon the Corporation shall, immediately and automatically, without further action on the part of the Corporation or any holder of capital stock of the Corporation, become governed by Section 203 of the DGCL, except that any Person who acquires capital stock of the Corporation in a transfer from a Dell Technologies Affiliate (i) for which such Dell Technologies Affiliate designates such Person as a transferee of such Dell Technologies Affiliate in writing, and (ii) immediately before which transfer the Dell Technologies Affiliates beneficially own in the aggregate shares of capital stock of the Corporation representing at least 10% of the Total Voting Power and immediately after which transfer the Dell Technologies Affiliates cease to beneficially own in the aggregate shares of capital stock of the Corporation representing at least 10% of the Total Voting Power, shall be deemed to not be an “interested stockholder,” as such term is defined in Section 203 of the DGCL, as a result of such transfer and such transfer shall be deemed to have been approved by the Board of Directors without such Person becoming an interested stockholder.
ARTICLE XIII
CERTAIN DEFINITIONS
As used in this Certificate of Incorporation, the following terms have the following meanings:
(a)
“
Affiliate
” of any Person means any entity that controls, is controlled by, or is under common control with such Person. “
Affiliated
” shall have a correlative meaning.
(b)
“
beneficial owner
” and “
beneficial ownership
” (including the term “
beneficially own
”) have the meanings ascribed to such terms in Rule 13d-3 under the Securities Exchange Act of 1934, as amended.
(c)
“
Bylaws
” means the Amended and Restated Bylaws of the Corporation, as may be amended from time to time.
(d)
“
Code
” means the Internal Revenue Code of 1986 (or any successor statute), as amended from time to time, and the regulations promulgated thereunder.
(e)
“
control
” (including the terms “
controlling
,” “
controlled by
” and “
under common control with
”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a legal entity, whether through the ownership of voting interests, by contract, or otherwise.
(f)
“
corporate opportunity
” includes, but not be limited to, (1) business opportunities that (i) the Corporation or any Corporation Affiliate is financially able, contractually permitted
24
and legally able to undertake, (ii) are, from their nature, in the line of the business of the Corporation or any Corporation Affiliate and (iii) are of practical advantage to the Corporation or any Corporation Affiliate and (2) business opportunities in which the Corporation or any Corporation Affiliate, but for the provisions of
Article V
, would have an interest or a reasonable expectancy.
(g)
“
Corporation Affiliate
” means (1) the Corporation or any of its Subsidiaries, (2) any legal entity of which the Corporation is the beneficial owner of voting interests representing 20% or more in voting power of the outstanding voting interests or (3) any other legal entity that (directly or indirectly) is controlled by the Corporation.
(h)
“
Corporation Official
” means each natural person who is a director or an officer (or both) of the Corporation or one or more Corporation Affiliates.
(i)
“
Dell Technologies
” means Dell Technologies Inc., a Delaware corporation, any of its successors by way of merger, consolidation or share exchange, any acquiror of all or substantially all of its assets and any Person of which Dell Technologies Inc. becomes a Subsidiary.
(j)
“
Dell Technologies Affiliate
” means, other than the Corporation or any other Corporation Affiliate,
(i)
any Dell Technologies Entity;
(ii)
any legal entity of which Dell Technologies is the beneficial owner of voting interests representing 20% or more in voting power of the outstanding voting interests;
(iii)
any other legal entity that (directly or indirectly) is controlled by Dell Technologies, controls Dell Technologies or is under common control with Dell Technologies; and
(iv)
any of (A) MD, (B) any legal entity of which MD is the beneficial owner of voting interests representing 20% or more in voting power of the outstanding voting interests, (C) any other legal entity that (directly or indirectly) is controlled by MD, (D) the Dell Trust, (E) any MSD Fund and (F) any Permitted Transferee of any person referred to in sub-clause (A), (D) or (E) of this clause (iv).
(k)
“
Dell Technologies Entity
” means any one or more of Dell Technologies and its Subsidiaries (other than the Corporation and the Corporation’s Subsidiaries).
(l)
“
Dell Technologies Group
” means the affiliated group (within the meaning of Section 1504(a) of the Code), or similar group of entities as defined under corresponding provisions of the laws of other jurisdictions, of which Dell Technologies is the common parent corporation, and any corporation or other entity which may be, may have been or may become a member of such group from time to time, but excluding any member of the Pivotal Group.
(m)
“
Dell Trust
” means the Susan Lieberman Dell Separate Property Trust.
25
(n)
“
Distribution
” means a distribution by Dell Technologies of Common Stock (and Preferred Stock, if any) of the Corporation or common stock (and preferred stock, if any) of a Person that is a successor to the Corporation to stockholders or security holders of Dell Technologies in connection with a transaction intended to qualify for non-recognition of gain and loss under Section 355 of the Code (or any corresponding provisions of any successor statute).
(o)
“
EMC
” means EMC Corporation, a Massachusetts corporation, any of its successors by way of merger, consolidation or share exchange, any acquiror of all or substantially all of its assets and any person of which EMC Corporation becomes a Subsidiary.
(p)
“
Ford Preferred Investor
” means Ford Motor Company, a Delaware corporation.
(q)
“
GE
” means General Electric Company, a New York corporation.
(r)
“
GE Preferred Investors
” means, collectively, GE and GE International Holdings B.V., a Dutch B.V.
(s)
“
Immediate Family Members
” means, with respect to any natural person (including MD), (1) such natural person’s spouse, children (whether natural or adopted as minors), grandchildren or more remote descendants, siblings, spouse’s siblings and (2) the lineal descendants of each of the persons described in the immediately preceding clause (1).
(t)
“
Indebtedness
” means, with respect to any Person, (1)(i) any liability of such Person in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments, (ii) any liability of such Person under any agreement related to the fixing of interest rates on any Indebtedness and (iii) any capitalized lease obligations of such Person (if and to the extent the same would appear on a balance sheet of such Person prepared in accordance with United States generally accepted accounting principles), and (2) any guarantee by such Person of any liability or obligation referred to in the immediately preceding clause (1).
(u)
“
MD
” means Michael S. Dell.
(v)
“
MD Charitable Entity
” means the Michael & Susan Dell Foundation and any other private foundation or supporting organization (as defined in Section 509(a) of the Code) established and principally funded directly or indirectly by MD and/or his spouse.
(w)
“
MD Stockholders
” means MD and the Dell Trust.
(x)
“
MSD Funds
” means (1) MSDC Denali Investors, L.P., a Delaware limited partnership, and (2) MSDC Denali EIV, LLC, a Delaware limited liability company.
(y)
“
Organizational Documents
” means, with respect to (1) the Corporation, this Certificate of Incorporation, the Bylaws and any Certificates of Designation and (2) with respect to any other Person, the articles and/or memorandum of association, certificate of incorporation, certificate of organization, bylaws, partnership agreement, limited liability company agreement, operating agreement, certificate of formation, certificate of limited partnership and/or other organizational or governing documents of such Person.
26
(z)
“
Permitted Transferee
” means:
(i)
In the case of the MD Stockholders:
(1)
MD, the Dell Trust or any Immediate Family Member of MD;
(2)
any MD Charitable Entity;
(3)
one or more trusts whose current beneficiaries are, and will remain for so long as such trust holds securities of the Corporation, any of (or any combination of) MD, one or more Immediate Family Members of MD or MD Charitable Entities;
(4)
any corporation, limited liability company, partnership or other legal entity wholly owned by any one or more natural persons or legal entities described in clause (i)(1), (i)(2) or (i)(3) of this definition of “Permitted Transferee”; and
(5)
from and after MD’s death, any recipient under MD’s will, any revocable trust established by MD that becomes irrevocable upon MD’s death, or by the laws of descent and distribution; or
(ii)
In the case of any of the MSD Funds:
(1)
any of its controlled Affiliates (other than portfolio companies); or
(2)
an Affiliated private equity fund of an MSD Fund that remains such an Affiliate or Affiliated private equity fund of such MSD Fund.
(aa)
“
Person
” means an individual, a partnership (including a limited partnership), a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or other entity, including governmental authorities; each reference to a “
record holder
” or “
record owner
” of shares, if a natural person, shall be deemed to include in his or her representative capacity a guardian, committee, executor, administrator or other legal representative of such natural person or record holder.
(bb)
“
Pivotal Group
” means the affiliated group (within the meaning of Section 1504(a) of the Code), or similar group of entities as defined under corresponding provisions of the laws of other jurisdictions, of which the Corporation will be the common parent corporation immediately after the Distribution, and any corporation or other entity which may become a member of such group from time to time.
(cc)
“
Pledge
” means any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in, attaching or applicable to, affecting or otherwise in respect of any share of Class B Common Stock, whether or not filed, recorded or otherwise perfected under applicable law, created,
27
incurred or existing pursuant to any bona fide loan or indebtedness transaction or other bona fide obligation.
(dd)
“
Sale Transaction
” means (1) any merger, consolidation, business combination or amalgamation of the Corporation or any of its Subsidiaries with or into any Person, or (2) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the Corporation’s and its Subsidiaries’ assets (determined on a consolidated basis based on value) (including by means of merger, consolidation, other business combination, exclusive license, share exchange or other reorganization);
provided
,
however
, that in each case, any transaction solely between and among the Corporation and/or its Wholly-Owned Subsidiaries shall not be considered a Sale Transaction hereunder.
(ee)
“
Silver Lake
” means Silver Lake Group, L.L.C., a Delaware limited liability company, and any of its successors.
(ff)
“
Silver Lake Affiliates
” means Silver Lake and any legal entity or natural person that (directly or indirectly) is controlled by Silver Lake, controls Silver Lake or is under common control with Silver Lake, and shall include any principal, member, director, partner, stockholder, officer, employee or representative of any of the foregoing (including any such natural person who serves as a director of the Corporation or any Corporation Affiliate), but excluding in any event the Corporation or any Corporation Affiliate.
(gg)
“
Specified Entities
” means each of the Dell Technologies Affiliates, the Silver Lake Affiliates, the VMware Entities, the Ford Preferred Investor and the GE Preferred Investors.
(hh)
“
Specified Entity Official
” means each natural person who is a director or an officer (or both) of one or more Specified Entities.
(ii)
“
Stock
” means shares of capital stock (whether denominated as common stock or preferred stock), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or business trust, whether voting or non-voting.
(jj)
“
Stock Equivalents
” means all securities convertible into or exchangeable or exercisable for Stock (including convertible debt) and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable, and all voting debt. For the avoidance of doubt, all Equity Awards shall be deemed to be Stock Equivalents for the purposes of this Certificate of Incorporation.
(kk)
“
Subsidiary
” means, for all purposes of this Certificate of Incorporation other than
Article
VI,
as to any Person, a corporation, partnership, limited liability company, joint venture, association or other legal entity (1) in which such Person beneficially owns voting interests representing 50% or more in voting power of the outstanding voting interests or (2) if no governing body exists at such legal entity, in which such Person beneficially owns capital stock, partnership interests, limited liability company interests or other ownership interests representing 50% or more in voting power of such ownership interests, with such Person being deemed to have beneficial ownership of 50% or more in voting power of such voting interests or ownership interests of a partnership or limited liability company if such Person or a Subsidiary of such
28
Person (or a combination thereof) shall be, or shall control (directly or indirectly), the sole general partner or the managing general partner of such partnership or the managing member of such limited liability company.
(ll)
“
Total Voting Power
” means the aggregate voting power of the issued and outstanding capital stock of the Corporation, voting together as a single class, with, for the purposes of this definition, each issued and outstanding share of Class A Common Stock having one (1) vote, each issued and outstanding share of Class B Common Stock having ten (10) votes and each issued and outstanding share of Preferred Stock having such number of votes which such share of Preferred Stock would have on matters on which holders of the Preferred Stock vote together with holders of the Common Stock.
(mm)
“
Transfer
” means any direct or indirect sale, transfer or other disposition of a share of Class B Common Stock;
provided
,
however
, notwithstanding the foregoing, “Transfer” shall not mean any Pledge of a share of Class B Common Stock for so long as the owner of such share of Class B Common Stock continues to exercise voting control over such share of Class B Common Stock (with a power of attorney and/or proxy given by such owner to another Person in connection with any such Pledge to exercise voting control effective upon the occurrence of certain events not constituting voting control by such other Person for these purposes until such events occur and such power of attorney and/or proxy is effective);
provided
further
that a foreclosure on such share of Class B Common Stock or other similar action by the pledgee under such Pledge which results in the acquisition by the pledgee or any other assignee thereof (other than a Dell Technologies Entity) of voting control over such share of Class B Common Stock shall constitute a “Transfer.” “
Transferred
” and “
Transferee
” shall have correlative meanings.
(nn)
“
VMware
” means VMware, Inc., a Delaware corporation, any of its successors by way of merger, consolidation or share exchange, any acquiror of all or substantially all of its assets and any person of which VMware, Inc. becomes a Subsidiary, but shall not include the Corporation or EMC or any of their respective Subsidiaries (other than VMware, Inc.).
(oo)
“
VMware Entities
” means any one or more of VMware and its Subsidiaries but shall not include the Corporation or any of its Subsidiaries.
(pp)
“
voting interests
” means, with respect to any legal entity, capital stock, partnership interests, limited liability company interests or other ownership interests entitled generally to vote on the election of directors, managers or other voting members of the governing body of such legal entity.
(qq)
“
Wholly-Owned Subsidiary
” means each Subsidiary in which the Corporation owns (directly or indirectly) all of the outstanding voting Stock, voting power, partnership interests or similar ownership interests, except for director’s qualifying shares in nominal amount.
ARTICLE XIV
AMENDMENTS TO CERTIFICATE OF INCORPORATION
Except as otherwise provided in this Certificate of Incorporation, including
Section 4.2(b)(ii)
, the Corporation reserves the right to amend and repeal any provisions contained in this Certificate of Incorporation in the manner prescribed by the DGCL, and all rights and powers
29
conferred upon stockholders, directors and officers herein are granted subject to this reservation. Notwithstanding the foregoing, at any such time that the Dell Technologies Affiliates cease to beneficially own in the aggregate shares of the capital stock of the Corporation representing a majority of the Total Voting Power, the provisions set forth in
Section 4.2(b)
(Voting Rights),
Article V
(Related Activities and Corporate Opportunities),
Article VI
(Consent of Holders of Class B Common Stock),
Article VII
(Board of Directors),
Article VIII
(Stockholder Action),
Article IX
(Bylaws),
Article X
(Limitations on Liability and Indemnification),
Article XI
(Exclusive Forum),
Article XII
(Business Combinations), this
Article XIV
and any definitions related to any of the foregoing in
Article XIII
(Certain Definitions) may not be repealed or amended in any respect, and no other provision may be adopted, amended or repealed which would have the effect of modifying or permitting the circumvention of any of such provisions, unless, in addition to any affirmative vote required by applicable law or any other provision of this Certificate of Incorporation, such action is approved by the affirmative vote of the holders of shares of capital stock of the Corporation representing not less than 66
2
/
3
% of the Total Voting Power.
30
IN WITNESS WHEREOF, the Corporation has executed this Amended and Restated Certificate of Incorporation this th day of .
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PIVOTAL SOFTWARE, INC.
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By:
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Name: Andrew M. Cohen
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Title: Senior Vice President and General Counsel
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[
Signature page to Certificate of Incorporation
]
Exhibit 3.2
AMENDED AND RESTATED BYLAWS
OF
PIVOTAL SOFTWARE, INC.
Incorporated under the Laws of the State of Delaware
As of , 2018
ARTICLE I
OFFICES AND RECORDS
Section 1.1
Offices
. The address of the registered office of Pivotal Software, Inc. (the “
Corporation
”) and the name of the Corporation’s registered agent are as set forth in the Amended and Restated Certificate of Incorporation of the Corporation (as amended and/or restated from time to time, including the terms of any Certificate of Designation relating to a series of Preferred Stock, the “
Certificate of Incorporation
”). The Corporation may have other offices, either within or without the State of Delaware, as the Board of Directors (the “
Board of Directors
”) may designate or as the business of the Corporation may from time to time require.
Section 1.2
Books and Records
. The books and records of the Corporation may be kept outside the State of Delaware at such place or places as may from time to time be designated by the Board of Directors.
Section 1.3
Defined Terms
. Capitalized terms used in these Amended and Restated Bylaws (these “
Bylaws
”) without definition shall have the meanings assigned thereto in
Article IX
.
ARTICLE II
STOCKHOLDERS
Section 2.1
Annual Meeting
. The annual meeting of the stockholders of the Corporation for the election of directors and for the transaction of such other business as may be properly brought before the meeting shall be held on such date and at such place, if any, and time as may be fixed by resolution of the Board of Directors. The Board of Directors may postpone, recess, reschedule or cancel any previously scheduled annual meeting of stockholders.
Section 2.2
Special Meeting
. Except as otherwise required by law or provided by the Certificate of Incorporation, special meetings of stockholders of the Corporation may be called only by (1) the Chairperson of the Board of Directors (the “
Chairperson of the Board
”), (2) the Board of Directors or the Secretary of the Corporation pursuant to a resolution adopted by the affirmative vote of a majority of the votes entitled to be cast by the directors then in office or (3) if permitted by the Certificate of Incorporation, Dell Technologies. No business other than that stated in the Corporation’s notice of a special meeting of stockholders (or any supplement thereto) shall be transacted at such special meeting. The Board of Directors or the Chairperson of the Board may postpone, recess, reschedule or cancel any special meeting of stockholders
1
previously scheduled, except that, if so provided in the Certificate of Incorporation, no special meeting of stockholders called by Dell Technologies may be postponed, recessed, rescheduled or cancelled by the Corporation without the prior written consent of Dell Technologies. In the case of a special meeting of stockholders called by Dell Technologies, the Corporation shall send notice of such special meeting upon the receipt of a written request from Dell Technologies, which request shall state the purpose or purposes for which such special meeting is called, and, if requested by the Corporation, Dell Technologies shall provide documentary evidence of the beneficial ownership of the Corporation’s capital stock by the Dell Technologies Affiliates. Nothing contained herein shall prohibit the Board of Directors from submitting matters to the stockholders at any special meeting requested by Dell Technologies.
Section 2.3
Place of Meeting
. The Board of Directors or the Chairperson of the Board, as the case may be, shall designate the place of meeting, if any, for any annual meeting and for any special meeting of the stockholders. Notwithstanding the foregoing, the Board of Directors may determine that the meeting shall not be held at any place, but may instead be held by means of remote communication. If no designation is so made, the place of meeting shall be the principal executive office of the Corporation.
Section 2.4
Notice of Meeting
. Written notice of any meeting of stockholders shall be given which shall state the place, if any, date and time of the meeting, and 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, the record date for determining stockholders entitled to vote at the meeting if such date is different from the record date for determining stockholders entitled to notice of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise provided by the DGCL, such notice shall be given by the Corporation in any manner permitted by
Section 6.8
or otherwise under the DGCL and, unless otherwise required by applicable law, such notice shall be given not less than ten (10) days nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such meeting as of the record date for notice of such meeting.
Section 2.5
Quorum and Adjournment
. Except as otherwise required by express provision of applicable law, the rules or regulations of the NYSE, the Certificate of Incorporation or these Bylaws, which express provision shall govern, the presence of the holders of shares of capital stock representing a majority of the votes entitled to be cast by the issued and outstanding shares of capital stock entitled to vote at a meeting of stockholders, represented in person or by proxy, shall constitute a quorum at a meeting of stockholders;
provided
,
however
, that where a separate vote by a class or series or classes or series of capital stock is required for a vote on a matter or specified business, the presence of holders of shares of capital stock representing a majority of the votes entitled to be cast by the issued and outstanding shares of such class or series or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to the vote on that matter or specified business. The chairperson of the meeting or the Board of Directors may adjourn the meeting from time to time, whether or not there is such a quorum. No notice of the time and place, if any, of the adjourned meeting need be given if the place, if any, date, and time of the adjourned meeting, and the means of remote communication, if any, by which stockholders and proxyholders may be deemed present and vote at the adjourned meeting are announced at the meeting at which the adjournment is taken. If the adjournment is for more than thirty (30) days, a notice of the
2
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 of Directors 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 entitled to vote at such adjourned meeting as of the record date so fixed for notice of such adjourned meeting. The stockholders present at a duly called meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. At the adjourned meeting, the Corporation may transact any business which might have been transacted at the original meeting.
Section 2.6
Conduct of Business
. At each meeting of stockholders, the Chairperson of the Board, if one shall have been elected, or in the Chairperson of the Board’s absence or if one shall not have been elected, the director designated by the vote of directors representing a majority of the votes entitled to be cast by the directors present at such meeting, shall act as chairperson of the meeting. Except as otherwise provided by resolution of the Board of Directors, the Chairperson of the Board may also designate any other director or any officer or representative of the Corporation to act in his or her stead as chairperson of the meeting for any meeting of stockholders. The Secretary (or in the Secretary’s absence or inability to act, the person whom the chairperson of the meeting shall appoint secretary of the meeting) shall act as secretary of the meeting and keep the minutes thereof. The date and time for the opening and closing of the polls for each matter upon which the stockholders will vote at the meeting shall be announced at the meeting. To the extent not prohibited by law, the Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the chairperson of the meeting shall have the right and authority to convene and (for any or no reason) to recess or adjourn such meeting and to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of the chairperson of the meeting, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairperson of the meeting, to the extent not prohibited by law, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present at the meeting; (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairperson of the meeting shall determine may attend or participate in the meeting; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants in the meeting. In addition to making any other determinations that may be appropriate to the conduct of the meeting, if the facts so warrant, the chairperson of the meeting shall determine and declare to the meeting that a matter or business was not properly brought before the meeting and, if the chairperson of the meeting shall so determine and declare, any such matter or business not properly brought before the meeting shall not be transacted or considered.
Section 2.7
Proxies
. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting
3
may authorize another person or persons to act for such stockholder by proxy executed in writing (or given in any such manner permitted by applicable law) by the stockholder, or by his or her duly authorized attorney-in-fact. Such proxy must be delivered to the Secretary or his or her representative at or before the time of the meeting at which such proxy will be voted. No proxy shall be valid after three (3) years from the date of its execution, unless the proxy provides for a longer period. Each proxy shall be revocable unless expressly provided therein to be irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power.
Section 2.8
Notice of Stockholder Business and Nominations
.
(a)
Annual Meetings of Stockholders
.
(i)
Nominations of persons for election to the Board of Directors and the proposal of business to be considered by the stockholders at an annual meeting of stockholders may be made only (1) pursuant to the Corporation’s notice of meeting (or any supplement thereto), (2) by or at the direction of the Board of Directors, or (3) by any stockholder of the Corporation (A) who is a stockholder of record at the time of giving of notice provided for in
Section 2.8(a)(ii)
and
Section 2.8(a)(iii)
and at the time of the annual meeting, (B) who is entitled to vote at the meeting upon such election of directors or upon such business, as the case may be, and (C) who complies with the procedures set forth in this
Section 2.8(a)
, and, except as otherwise required by law, any failure to comply with these procedures shall result in the nullification of such nomination or proposal.
(ii)
For nominations of persons for election to the Board of Directors or other business to be properly brought before an annual meeting by a stockholder pursuant to
Section 2.8(a)(i)(3)
, the subject matter of any proposed business must be a matter that is a proper subject matter for stockholder action at such meeting and the stockholder (1) must have given timely notice thereof in writing to the Secretary and (2) must provide any updates or supplements to such notice at such times and in the forms required by this
Section 2.8
. To be timely, a stockholder’s notice shall be delivered to, or mailed to and received by, the Secretary at the principal executive office of the Corporation not earlier than the 120th day, nor later than 5:00 p.m. Eastern Time on the 90th day, prior to the first anniversary of the preceding year’s annual meeting;
provided
,
however
, that in the event that the date of any annual meeting is more than thirty (30) days before or more than seventy (70) days after such anniversary date, notice by the stockholder, to be timely, must be so delivered, or mailed and received, not earlier than the 120th day prior to such annual meeting and not later than 5:00 p.m. Eastern Time on the later of (x) the 90th day prior to such annual meeting and (y) the 10th day following the day on which notice of the date of such meeting is first made by the Corporation. In no event shall the public announcement of an adjournment, postponement or recess 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. For purposes of the first annual meeting following the initial public offering of the Class A Common Stock of the Corporation, the date of the first anniversary of the preceding year’s annual meeting shall be deemed to be June 15, 2019.
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(iii)
To be in proper form for purposes of this
Section 2.8
, a stockholder’s notice to the Secretary (whether pursuant to this
Section 2.8(a)
or
Section 2.8(b)
) must set forth:
(1)
as to each Proposing Person: (A) the name and address of such Proposing Person (including, if applicable, the name and address that appear on the Corporation’s books and records); (B) the class or series and number of shares of capital stock of the Corporation that are, directly or indirectly, owned of record or beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by such Proposing Person (
provided,
that such Proposing Person shall in all events be deemed to beneficially own any shares of any class or series and number of shares of capital stock of the Corporation as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future); (C) a description of any agreement, arrangement or understanding between or among such Proposing Person and any other person or persons (including their names) acting in concert with such Proposing Person in connection with the proposal of such nomination or other business; and (D) a description of any agreement, arrangement or understanding (including, regardless of the form of settlement, any derivative, long or short positions, profit interests, forwards, futures, swaps, options, warrants, convertible securities, stock appreciation or similar rights, hedging transactions and borrowed or loaned shares) that has been entered into by or on behalf of, or any other agreement, arrangement or understanding that has been made, the effect or intent of which is to create or mitigate loss to, manage risk or benefit of share price changes for, or increase or decrease the voting power of, such Proposing Person with respect to the Corporation’s securities;
(2)
if such notice pertains to the nomination by the stockholder of a person or persons for election to the Board of Directors (each, a “
nominee
”), as to each nominee, (A) the name, age, business and residence address, and principal occupation or employment of the nominee; (B) all other information relating to the nominee that would be required to be disclosed about such nominee if proxies were being solicited for the election of the nominee as a director in an election contest (whether or not such proxies are or will be solicited), or that is otherwise required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act; (C) a reasonably detailed description of any compensatory, payment or other financial agreement, arrangement or understanding that such person has with any other person or entity other than the Corporation including the amount of any payment or payments received or receivable thereunder, in each case in connection with candidacy or service as a director of the Corporation (a “
Third-Party Compensation Arrangement
”); (D) such nominee’s written consent to being named in the Corporation’s proxy statement as a nominee and to serving as a director if elected; and (E) all information with respect to such nominee that would be required to be set forth in a stockholder’s notice pursuant to this
Section 2.8
if such nominee were a Proposing Person;
5
(3)
if the notice relates to any business (other than the nomination of persons for election to the Board of Directors) that the stockholder proposes to bring before the meeting, (i) a reasonably brief description of the business desired to be brought before the meeting, (ii) the text of the proposal or business (including the text of any resolutions proposed for consideration and if such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), (iii) the reasons for conducting such business at the meeting, (iv) any direct or indirect material interest in such business of each Proposing Person and any other person or persons with whom each Proposing Person has any agreement, arrangement or understanding in connection with such proposal; and (v) such other information relating to any proposed item of business as the Corporation may reasonably require to determine whether such proposed item of business is a proper matter for stockholder action;
(4)
a representation that the stockholder giving the notice is a holder of record of 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;
(5)
a representation whether any Proposing Person intends or is part of a group that intends (A) 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 (B) otherwise to solicit proxies from stockholders in support of such proposal or nomination; and
(6)
any other information relating to such stockholder, beneficial owner, if any, or director nominee or proposed business that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies in support of such nominee or proposal pursuant to Section 14 of the Exchange Act.
(iv)
If requested by the Corporation, the information required under
Section 2.8(a)(iii)(1)
shall be supplemented by such stockholder and any such beneficial owner not later than ten (10) days after the record date for the meeting to disclose such information as of the record date. In addition, a stockholder seeking to nominate a director candidate or bring other business before the annual meeting shall promptly provide any other information reasonably requested by the Corporation.
(v)
Notwithstanding anything in
Section 2.8(a)(ii)
to the contrary, in the event that the number of directors to be elected to the Board of Directors at an annual meeting of stockholders is increased and there is no public announcement by the Corporation naming the nominees for the additional directorships at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting of stockholders, a stockholder’s notice required by this
Section 2.8(a)
shall also be considered timely, but only with respect to nominees for the additional directorships, if it
6
is received by the Secretary at the principal executive offices of the Corporation not later than 5:00 p.m. Eastern Time on the 10th day following the day on which such public announcement is first made by the Corporation (it being understood that such notice must nevertheless comply with the requirements of this
Section 2.8(a)
).
(b)
Special Meetings of Stockholders
.
(i)
No business other than that stated in the Corporation’s notice of a special meeting of stockholders (or any supplement thereto) shall be transacted at such special meeting. Except as otherwise required by law or fixed pursuant to
Article IV
or any Certificate of Designation relating to the rights of the holders of any series of Preferred Stock then outstanding, directors may only be elected at a special meeting of stockholders if determined by (1) the Board of Directors or any authorized committee thereof or (2) Dell Technologies in accordance with Section 8.2 of the Certificate of Incorporation. If the business stated in the Corporation’s notice of a special meeting of stockholders includes electing one or more directors to the Board of Directors, nominations of persons for election to the Board of Directors at such special meeting may be made, subject to any rights provided to any series of Preferred Stock then outstanding, (x) by or at the direction of the Board of Directors or any committee thereof, (y) if such special meeting was requested by Dell Technologies in accordance with Section 8.2 of the Certificate of Incorporation, by Dell Technologies, or (z) by any stockholder of the Corporation (A) who is a stockholder of record at the time of giving of notice provided for in
Section 2.8(a)(iii)
and at the time of the special meeting, (B) who is entitled to vote at the meeting and upon such election, and (C) who complies with the notice procedures set forth in
Section 2.8(a)(iii)
and
Section 2.8(b)(ii
);
provided
,
however
, that a stockholder may nominate persons for election at a special meeting only to such position(s) as specified in the Corporation’s notice of the meeting.
(ii)
If a special meeting has been called in accordance with
Section 2.2
for the purpose of electing one or more directors to the Board of Directors, then for nominations of persons for election to the Board of Directors to be properly brought before such special meeting by a stockholder pursuant to this
Section 2.8(b
), the stockholder (1) must have given timely notice thereof in writing and in the proper form to the Secretary of the Corporation at the principal executive offices of the Corporation, and (2) must provide any updates or supplements to such notice at such times and in the forms required by this
Section
2.8. To be timely, a stockholder’s notice relating to a special meeting shall be delivered to, or mailed to and received by, the Secretary at the principal executive office of the Corporation not earlier than 5:00 p.m. Eastern Time on the 120th day prior to such special meeting and not later than 5:00 p.m. Eastern Time on the later of (A) the 90th day prior to such special meeting and (B) the 10th 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 of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment, postponement or recess 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. To be in proper form for purposes of this
Section 2.8(b)
, such notice shall set forth the information required by
Section 2.8(a)(iii)
. For purposes of this
Section 2.8(b)(ii)
, “public announcement” shall include disclosure in
7
a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
(c)
General
.
(i)
Only such persons who are nominated in accordance with the procedures set forth in this
Section
2.8 shall be eligible to be elected at an annual or special meeting of directors 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 2.8
. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, the chairperson of the meeting shall have the power and duty 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
2.8 and, if any proposed nomination or business was not made or proposed in compliance with this
Section 2.8
, to declare that such non-compliant proposal or nomination be disregarded.
(ii)
Notwithstanding the foregoing provisions of this
Section
2.8, 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
2.8, to be considered a qualified representative of the stockholder, a person must be 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.
(iii)
To be eligible to be a nominee for election as a director, the proposed nominee must provide to the Secretary of the Corporation in accordance with the applicable time periods prescribed for delivery of notice under
Section 2.8(a)(ii
) or
Section 2.8(b)(ii
): (1) a completed D&O questionnaire (in the form provided by the Secretary of the Corporation at the request of the nominating stockholder) containing information regarding the nominee’s background and qualifications and such other information as may reasonably be required by the Corporation to determine the eligibility of such proposed nominee to serve as a director of the Corporation or to serve as an independent director of the Corporation, (2) a written representation that, unless previously disclosed to the Corporation, the nominee is not and will not become a party to any voting agreement, arrangement or understanding with any person or entity as to how such nominee, if elected as a director, will vote on any issue or that could interfere with such person’s ability to comply, if elected as a director, with his/her fiduciary duties under applicable law, (3) a written representation and agreement that, unless previously disclosed to the Corporation pursuant to
Section 2.8(a)(iii)(2)(C)
, the nominee is not and
8
will not become a party to any Third-Party Compensation Arrangement and (4) a written representation that, if elected as a director, such nominee would be in compliance and will continue to comply with the Corporation’s corporate governance guidelines as disclosed on the Corporation’s website, as amended from time to time. At the request of the Board of Directors, any person nominated by the Board of Directors for election as a director shall furnish to the Secretary of the Corporation the information that is required to be set forth in a stockholder’s notice of nomination that pertains to the nominee. The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine (A) the eligibility of such proposed nominee to serve as a director of the Corporation, and (B) whether such nominee qualifies as an “independent director” or “audit committee financial expert” under applicable law, securities exchange rule or regulation, or any publicly-disclosed corporate governance guideline or committee charter of the Corporation.
(iv)
Without limiting the foregoing provisions of this
Section 2.8
, a stockholder shall also comply with all applicable requirements of the Exchange Act with respect to the matters set forth in this
Section 2.8
. For the avoidance of doubt, any references in these Bylaws to the Exchange Act 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 2.8
, and compliance with
Section 2.8(a
) and
Section 2.8(b
) shall be the exclusive means for a stockholder to make nominations or submit other business (other than as provided in
Section 2.8(c)(v
)). Subject to Rule 14a-8 under the Exchange Act, nothing in these Bylaws shall be construed to permit any stockholder, or give any stockholder the right, to include or have disseminated or described in the Corporation’s proxy statement any nomination of director or directors or any other business proposal.
(v)
Notwithstanding anything to the contrary contained in these Bylaws (except for the first sentence of
Section 2.8(c)(iv)
), the notice requirements set forth herein with respect to the proposal of any business pursuant to this
Section 2.8
shall be deemed satisfied by a stockholder if such stockholder has submitted a proposal to the Corporation in compliance with Rule 14a-8 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 the meeting of stockholders. Notwithstanding anything to the contrary contained in these Bylaws (except for the first sentence of
Section 2.8(c)(iv)
), nothing in this
Section 2.8
shall be deemed to affect any rights of the holders of any outstanding series of Preferred Stock, voting as a class separately from the holders of Common Stock, to elect directors pursuant to any Certificate of Designation relating to a series of Preferred Stock or the Certificate of Incorporation.
(d)
Exceptions
. Notwithstanding anything to the contrary contained in these Bylaws, for so long as Dell Technologies has the right to call a special meeting pursuant to the Certificate of Incorporation, Dell Technologies shall not be subject to the notice procedures set forth in this
Section 2.8
.
9
Section 2.9
Required Vote.
(a)
At all meetings of stockholders, each stockholder shall be entitled to such number of votes, if any, for each share of stock entitled to vote and held of record by such stockholder as may be fixed in the Certificate of Incorporation, subject to any powers, restrictions or qualifications set forth in the Certificate of Incorporation. Any share of capital stock of the Corporation held by the Corporation or any of its majority-owned subsidiaries in treasury shall not be shares entitled to vote at, or to be counted in determining the presence of a quorum for, any meeting of stockholders.
(b)
Except as otherwise required by express provision of applicable law, the rules or regulations of the NYSE, the Certificate of Incorporation or these Bylaws, which express provision shall govern, when a quorum is present, in all matters other than the election of directors, the affirmative vote of the holders of shares of capital stock representing a majority of the votes entitled to be cast by the shares present in person or represented by proxy at the meeting and entitled to vote on the matter shall be the act of the stockholders. If a separate vote by a class or series or classes or series of stock is required with respect to any matter brought before a meeting, in all matters other than the election of directors, such matter shall be decided by the affirmative vote of the holders of shares of such class or series or classes or series representing a majority of the votes entitled to be cast of the shares of such class or series or classes or series present in person or represented by proxy at such meeting and entitled to vote on such matter, unless such matter is one upon which a different vote is required by express provision of applicable law, the rules or regulations of the NYSE, the Certificate of Incorporation or these Bylaws, in which case such express provision shall govern. Subject to the rights of the holders of any series of Preferred Stock then outstanding to elect additional directors under specific circumstances, as may be set forth in the Certificate of Designation for such class or series of Preferred Stock, each director shall be elected by a plurality of the votes cast by the shares of capital stock of the Corporation present in person or represented by proxy at the meeting and entitled to vote on the election of such director. All such votes may be cast in person or by proxy as provided in
Section 2.7
.
(c)
The Board of Directors, in its discretion, or the chairperson of the meeting, in such person’s discretion, may require that any votes cast at such meeting shall be cast by written ballot. No stockholder shall be entitled to exercise any right of cumulative voting.
Section 2.10
Inspectors of Elections; Opening and Closing the Polls
. The Corporation may appoint, and if required by law, shall appoint one or more inspectors, which inspector or inspectors may include individuals who serve the Corporation in other capacities, including, without limitation, as officers, employees, agents or representatives, to act at the meetings of stockholders and make a written report thereof. One or more persons may be designated as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act or is able to act at a meeting of stockholders, the chairperson of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by the DGCL and other applicable law. The chairperson of the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting.
10
Section 2.11
Stockholder Action by Written Consent
.
(a)
Any action required or permitted to be taken by stockholders at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of shares of capital stock representing not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of capital stock entitled to vote thereon were present and voted;
provided
,
however
, that, except as provided in the Certificate of Incorporation, from and after the date on which the Dell Technologies Affiliates do not have beneficial ownership in the aggregate of shares of capital stock of the Corporation representing a majority of the Total Voting Power, any action required or permitted to be taken by stockholders shall be effected only at a duly called annual or special meeting of stockholders and shall not be effected by a written consent or consents by stockholders in lieu of such a meeting. All written consents authorized by this
Section 2.11
shall be delivered to the Corporation by delivery to its principal place of business or the Secretary.
(b)
Prompt notice of the taking of any corporate action by the stockholders without a meeting by less than unanimous written consent of the stockholders shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of stockholders to take the action were delivered to the Corporation as provided in this
Section
2.11. In the event that the action that is consented to is such as would have required the filing of a certificate under the DGCL that such action had been voted on by stockholders or by members at a meeting thereof, the certificate filed shall state, in lieu of any statement concerning any vote of stockholders or members, that written consent has been given in accordance with the DGCL.
Section 2.12
Stock List
. The Corporation shall prepare, at least ten (10) days prior to each meeting of stockholders, a complete list of stockholders entitled to vote at such meeting of stockholders, arranged in alphabetical order and showing the address of each such stockholder and the number of shares registered in the name of each such stockholder. Such list shall be open to the examination of any such stockholder, for any purpose germane to the meeting, for a period of at least ten (10) days prior to the meeting as required by the DGCL (i) on a reasonably accessible electronic network,
provided
,
however
, that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then such 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. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock list required by this
Section 2.12
or to vote in person or by proxy at any meeting of the stockholders.
11
ARTICLE III
BOARD OF DIRECTORS
Section 3.1
General Powers
. Except as otherwise provided in the Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed under the direction of the Board of Directors.
Section 3.2
Number and Term
. The number of authorized directors that shall constitute the Entire Board of Directors, and any groups or classes thereof, shall be fixed in the manner provided in the Certificate of Incorporation. The term of each director shall be set as specified in the Certificate of Incorporation. Directors need not be stockholders of the Corporation to be qualified for election or service as a director.
Section 3.3
Regular Meetings
. Regular meetings of the Board of Directors shall be held at such place or places, on such date or dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required.
Section 3.4
Special Meetings
. Special meetings of the Board of Directors shall be called by (i) the Chairperson of the Board, (ii) the Chief Executive Officer or (iii) directors representing a majority of the votes entitled to be cast by the directors then in office. The person or persons authorized to call special meetings of the Board of Directors may fix the place and time of the meetings. A notice of a special meeting of the Board of Directors need not specify the purposes of the meeting.
Section 3.5
Notice
. Notice of special meetings of the Board of Directors shall be given to each director (i) at least four (4) days prior to the day on which such meeting is to be held, if notice is given by mail, addressed to such director at such director’s residence or usual place of business, or (ii) at least twenty-four (24) hours before the meeting, if notice is given to each director personally or by telephone, facsimile, electronic mail or other electronic transmission. Notice of a special meeting may be waived by a director in accordance with
Section 6.6
.
Section 3.6
Action by Consent of Board of Directors
. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board of Directors or committee, as the case may be, consent thereto 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 of Directors or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 3.7
Conference Telephone Meetings
. Members of the Board of Directors, or any committee thereof, may participate in a meeting of the Board of Directors, or such committee, by means of conference telephone or other communications equipment by
12
means of which all persons participating in the meeting can hear and communicate with each other, and such participation in a meeting shall constitute presence in person at such meeting.
Section 3.8
Organization
. The Chairperson of the Board shall, if present, preside at all meetings of the Board of Directors. In the absence of the Chairperson of the Board, or if a Chairperson of the Board has not been elected, the Chief Executive Officer shall preside at all meetings of the Board of Directors. The Chief Executive Officer may also preside at any such meeting attended by the Chairperson of the Board if he or she is so designated by the Chairperson of the Board. If the Chairperson of the Board and the Chief Executive Officer are both not present at a meeting of the Board of Directors, directors representing a majority of the votes entitled to be cast by the directors present at such meeting shall elect one (1) of their members to preside at such meeting. Except as provided below, the Secretary of the Corporation shall act as secretary at each meeting of the Board of Directors. In case the Secretary shall be absent from any meeting of the Board of Directors, an Assistant Secretary shall perform the duties of secretary at such meeting; and in the absence from any such meeting of the Secretary and all the Assistant Secretaries, the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 3.9
Quorum; Voting
. Except as otherwise required by law or the Certificate of Incorporation and subject to
Section 3.11
, at all meetings of the Board of Directors, the presence of directors representing a majority of the votes entitled to be cast by the directors then in office (including the votes entitled to be cast by any Supervoting Group I Director) shall constitute a quorum for the transaction of business, but if at any meeting of the Board of Directors there shall be less than a quorum present, the directors present thereat may adjourn the meeting from time to time without further notice. When a meeting is adjourned to another time or place (whether or not a quorum is present), notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting, the Board of Directors may transact any business which might have been transacted at the original meeting. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat shall adjourn the meeting, from time to time, without notice other than announcement at the meeting, until a quorum shall be present. The act of a majority of the votes entitled to be cast by directors (including the votes entitled to be cast by any Supervoting Group I Director) present at a meeting at which there is a quorum shall be the act of the Board of Directors, except as otherwise required by applicable law, the Certificate of Incorporation or these Bylaws. Each director shall be entitled to cast a number of votes as determined pursuant to the Certificate of Incorporation or, if silent, according to law.
Section 3.10
Newly-Created Directorships; Vacancies
. Except as otherwise provided by applicable law, vacancies occurring in any directorship (whether by death, resignation, retirement, disqualification, removal or other cause) and newly created directorships resulting from any increase in the number of directors shall be filled in accordance with the Certificate of Incorporation. Any director elected to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen and until his or her successor shall be elected and qualified, or until his or her earlier death, resignation, retirement, disqualification or removal.
13
Section 3.11
Committees of the Board of Directors
.
(a)
The Board of Directors may from time to time designate committees of the Board of Directors, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board of Directors and shall, for those committees and any others provided for herein elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee. Unless otherwise provided in the resolution establishing a committee of the Board of Directors, in the event that a member and that member’s alternate, if alternates are designated by the Board of Directors, of such committee is or are absent or disqualified, the member or members of such 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 of Directors to act at the meeting in place of any such absent or disqualified member. Each director appointed to a committee of the Board of Directors shall have such number of votes that such director has in meetings of the full Board of Directors pursuant to the Certificate of Incorporation unless otherwise provided in the resolution establishing such committee of the Board of Directors;
provided
,
however
, that any such resolution that would reduce the number of votes of the Supervoting Group I Director in a committee must also be approved by the Supervoting Group I Director, if any.
(b)
Any director serving on a committee of the Board of Directors may be removed from such committee at any time by the Board of Directors. Any director of the Corporation may resign from any committee of the Board of Directors at any time, by giving notice in writing or by electronic transmission to the Chairperson of the Board, the Chief Executive Officer or the Secretary of the Corporation and to the chairperson of such committee, if there be one. Such resignation shall take effect at the time therein specified or, if no time is specified, immediately; and, unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it effective.
(c)
Each committee of the Board of Directors may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as may otherwise be provided by a resolution of the Board of Directors designating such committee. Unless otherwise required by applicable law or provided herein or in the resolution establishing a committee of the Board of Directors, the presence of directors representing a majority of the votes entitled to be cast by the members of the committee (including the votes entitled to be cast by any Supervoting Group I Director) shall constitute a quorum of such committee. Adequate provision shall be made for notice to members of all meetings. If a quorum shall not be present at any meeting of any committee of the Board of Directors, the directors present thereat may adjourn the meeting from time to time without further notice. Unless otherwise required by applicable law or provided herein or in the resolution establishing a committee of the Board of Directors, the act of a majority of the votes entitled to be cast by the directors (including the votes entitled to be cast by any Supervoting Group I Director) present at a meeting of a committee at which there is a quorum shall be the act of such committee. Each committee shall keep regular minutes and report to the Board of Directors when required.
(d)
Any such committee, to the extent provided for in the resolution of the Board of Directors designating the committee and subject to the provisions of law, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be
14
affixed to all papers which may require it. Notwithstanding the foregoing, no committee shall have the power or authority in reference to any of the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors) expressly required by DGCL to be submitted to stockholders for approval or (ii) altering, amending or repealing any Bylaw, or adopting any new Bylaw.
Section 3.12
Removal
. Directors of the Corporation may be removed in the manner provided in the Amended and Restated Certificate of Incorporation.
Section 3.13
Resignation
. Any director may resign from the Board of Directors at any time by giving notice of such resignation in writing or by electronic transmission to the Board of Directors, the Chief Executive Officer or the Secretary. Any such resignation shall take effect at the time specified therein or, if the time of such resignation is not specified, upon receipt thereof, and, unless otherwise specified therein, the acceptance of any resignation shall not be necessary to make it effective.
Section 3.14
Records
. The Board of Directors shall cause to be kept a record containing the minutes of the proceedings of the meetings of the Board of Directors, and of any committee thereof, and of the stockholders, appropriate stock books and registers and such books of records and accounts as may be necessary for the proper conduct of the business of the Corporation.
Section 3.15
Compensation
. The Board of Directors shall have authority to determine from time to time the amount of any compensation, including fees and reimbursement of expenses, that shall be paid to its members for their services as directors and as members of standing or special committees of the Board of Directors. Members of special or standing committees may be allowed additional compensation for service as committee members. The Board of Directors shall also have power, in its discretion, to provide for and to pay to directors rendering services to the Corporation not ordinarily rendered by directors as such, special compensation appropriate to the value of such services as determined by the Board of Directors from time to time. Nothing herein contained shall be construed to preclude any directors from serving the Corporation in any other capacity and receiving compensation therefor.
Section 3.16
Chairperson of the Board
. The Chairperson of the Board shall have such powers and duties as may from time to time be specified by the Board of Directors or these Bylaws. The Board of Directors shall elect a Chairperson of the Board from among its members.
Section 3.17
Preferred Stock Directors
. Notwithstanding anything else contained herein, whenever the holders of one or more series of Preferred Stock shall have the right, voting separately as a class or series, to elect directors, the election, term of office, filling of vacancies, removal and other features of such directorships shall be governed by the terms of the resolutions applicable thereto adopted by the Board of Directors and any Certificate of Designation pursuant to the Certificate of Incorporation, and such directors so elected shall not be subject to the provisions of
Section 3.2
,
Section 3.10
or
Section 3.12
unless otherwise provided therein.
15
ARTICLE IV
OFFICERS
Section 4.1
Officers Designated
. The Board of Directors, the Chief Executive Officer, or any officer authorized by the Board of Directors or the Chief Executive Officer may appoint any officer of the Corporation or specify the duties and powers thereof;
provided
,
however
, the ability of the Chief Executive Officer or any other officer to appoint officers of the Corporation or specify the duties thereof may be limited or restricted by the Board of Directors. The officers of the Corporation shall be a Chief Executive Officer, one or more Presidents, a Chief Financial Officer, a Secretary and such other officers as the Board of Directors, the Chief Executive Officer or another officer so authorized from time to time may appoint, including a Treasurer and one or more Vice Presidents, Assistant Treasurers or Assistant Secretaries. Each such officer shall exercise such powers and perform such duties as shall be set forth in these Bylaws and such other powers and duties as from time to time may be specified by the Board of Directors, the Chief Executive Officer or by any officer authorized by these Bylaws, the Board of Directors or the Chief Executive Officer to specify the duties of such other officers. Any number of offices may be held by the same person. The Board of Directors, the Chief Executive Officer or any other person authorized by the Board of Directors at any time may delegate the powers and duties of any officer to any other officer, director, employee or agent.
Section 4.2
Term of Office
. Each officer shall hold office until his or her successor is appointed, or until his or her earlier death, resignation or removal.
Section 4.3
Chief Executive Officer
. The Chief Executive Officer, subject to the provisions of these Bylaws and the direction of the Board of Directors, shall have the responsibility for the general management and supervision of the business and affairs of the Corporation and shall exercise the powers and authority and perform all of the duties commonly incident to such office and shall perform such other duties as the Board of Directors shall specify from time to time.
Section 4.4
Chief Financial Officer
. The Chief Financial Officer, subject to the provisions of these Bylaws and the direction of the Board of Directors and the Chief Executive Officer, shall have overall responsibility and authority for the management of the financial affairs, financial operations and financial policies of the Corporation and shall exercise the powers and authority and perform all of the duties commonly incident to such office and shall perform such other duties as specified from time to time by the Board of Directors or the Chief Executive Officer if the Board of Directors does not do so. Unless otherwise specified by the Board of Directors or the Chief Executive Officer, the Chief Financial Officer shall have the power to appoint, specify the duties of and to remove the Treasurer or any Assistant Treasurer.
Section 4.5
Presidents
. Subject to the provisions of these Bylaws and the direction of the Board of Directors and the Chief Executive Officer, any President shall exercise the powers and authority and perform all of the duties commonly incident to such office and shall perform such other duties as specified from time to time by the Board of Directors or the Chief Executive Officer if the Board of Directors does not do so.
16
Section 4.6
Vice Presidents
. Each Vice President shall have such powers and shall perform such duties as specified from time to time by the Board of Directors, by the Chief Executive Officer if the Board of Directors does not do so or by or any other officer to whom the Vice President reports if the Board of Directors and the Chief Executive Officer do not do so.
Section 4.7
Secretary
. The Secretary, or in the Secretary’s absence, an Assistant Secretary, shall keep, or cause to be kept, in one or more books provided for that purpose, the minutes of all meetings of the Board of Directors, the committees of the Board of Directors and the stockholders; he or she shall see that all notices are duly given in accordance with the provisions of the Certificate of Incorporation, these Bylaws and as required by law; he or she shall be custodian of the records and the seal of the Corporation and affix and attest the seal to all stock certificates of the Corporation (unless the seal of the Corporation on such certificates shall be a facsimile, as hereinafter provided) and affix and attest the seal to all other documents to be executed on behalf of the Corporation under its seal; and he or she shall see that the books, reports, statements, certificates and other documents and records required by law to be kept and filed are properly kept and filed; and in general, he or she shall perform all the duties incident to the office of Secretary and such other duties as specified from time to time by the Board of Directors or the Chief Executive Officer if the Board of Directors does not do so. Unless otherwise specified by the Board of Directors or the Chief Executive Officer, the Secretary shall have the power to appoint, specify the duties of and to remove one or more Assistant Secretaries.
Section 4.8
Treasurer
. The Treasurer shall have such powers and shall perform such duties as specified from time to time by the Board of Directors, the Chief Executive Officer if the Board of Directors does not do so, or the Chief Financial Officer if the Board of Directors and the Chief Executive Officer do not do so.
Section 4.9
Removal; Vacancies
. The Board of Directors or the Chief Executive Officer may remove any officer of the Corporation at any time, with or without cause;
provided
,
however
, the ability of the Chief Executive Officer to remove one or more officers may be limited or restricted by the Board of Directors. Unless otherwise specified by the Board of Directors or the Chief Executive Officer, an officer that has duly appointed another officer of the Corporation in accordance with these Bylaws may remove such officer at any time, with or without cause;
provided
,
however
, the ability of the Chief Executive Officer to permit an officer to remove another officer may be limited or restricted by the Board of Directors. Any vacancy among the officers of the Corporation at any time or from time to time may be filled by (1) the Board of Directors, (2) the Chief Executive Officer or (3) any other officer authorized by these Bylaws, the Board of Directors or the Chief Executive Officer to appoint such officer or fill such vacancy;
provided
,
however
, the ability of the Chief Executive Officer or any other officer to remove or appoint any officer or fill any vacancy with respect to any officer of the Corporation may be limited or restricted by the Board of Directors. Nothing in these Bylaws shall be construed as creating any kind of contractual right to employment with the Corporation.
Section 4.10
Resignations
. Any officer may resign at any time by giving notice of such resignation in writing or by electronic transmission to the Board of Directors, the Chief Executive Officer, the Secretary or the officer that has duly appointed such resigning officer. Any such resignation shall take effect at the time specified therein or, if the time of such
17
resignation is not specified, upon receipt thereof, and, unless otherwise specified therein, the acceptance of any resignation shall not be necessary to make it effective.
ARTICLE V
STOCK
Section 5.1
Stock Certificates and Transfers
. The shares of the Corporation shall be represented by certificates, provided that the Board of Directors may provide by resolution that some or all of any or all classes or series of the Corporation’s stock shall be uncertificated shares. Every holder of shares represented by certificates shall be entitled to a certificate or certificates signed by, or in the name of, the Corporation by any two authorized officers (including, without limitation, the Chief Executive Officer, the Chief Financial Officer, any President, the Secretary, an Assistant Secretary, the Treasurer or an Assistant Treasurer). Any or all of such signatures may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate has been issued, such certificate may nevertheless be issued and delivered by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.
Section 5.2
Record Date
.
(a)
In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date on which the resolution fixing the record date is adopted by the Board of Directors and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting of stockholders. If the Board of Directors 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 of Directors 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 of Directors, the record date for determining stockholders entitled to notice of and 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 of Directors 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 with the foregoing provisions of this
Section 5.2
at the adjourned meeting.
(b)
Unless the ability of stockholders to act by written consent is otherwise restricted by the Certificate of Incorporation, in order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors 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 of Directors, and which
18
record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required by applicable law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office, its principal place of business, or an officer or agent of the Corporation having custody of the books in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by applicable law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the date on which the Board of Directors adopts the resolution taking such prior action.
(c)
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 the stockholders 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 of Directors 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 record date shall be not more than sixty (60) days prior to such action. If no 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 of Directors adopts the resolution relating thereto.
Section 5.3
Lost, Stolen or Destroyed Certificates
. The Corporation may issue a new certificate of stock or uncertificated shares in place of any certificate theretofore issued by it which is alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative to give the Corporation a bond sufficient to indemnify it against any claim that may be made against the Corporation on account of the certificate alleged to have been lost, stolen or destroyed or on account of the issuance of such new certificate or uncertificated shares.
Section 5.4
Record Owners
. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise required by law.
Section 5.5
Transfer and Registry Agents
. If represented by certificates, shares of the stock of the Corporation shall be transferable only upon the books of the Corporation upon the surrender of the certificate or certificates properly assigned and endorsed for transfer. If uncertificated, shares of capital stock of the Corporation shall be transferable only upon delivery of a duly executed instrument of transfer. If the Corporation has a transfer agent or agents or transfer clerk and registrar of transfers acting on its behalf, the signature of any officer or representative thereof may be in facsimile. The Board of Directors may appoint a transfer agent and one or more co-transfer agents and a registrar and one or more co-registrars of transfer and
19
may make or authorize the transfer agents to make all such rules and regulations deemed expedient concerning the issue, transfer and registration of shares of stock.
Section 5.6
Authority for Additional Rules Regarding Transfer
. The Board of Directors shall, to the fullest extent permitted by law, have the power and authority to make all such rules and regulations as they may deem expedient concerning the issue, transfer and registration of certificated or uncertificated shares of the stock of the Corporation.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1
Fiscal Year
. The fiscal year of the Corporation shall be as fixed by the Board of Directors.
Section 6.2
Dividends
. The Board of Directors may from time to time declare, and the Corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and the Certificate of Incorporation.
Section 6.3
Seal
. The corporate seal shall be in such form as may be approved from time to time by the Board of Directors, the Chief Executive Officer, the Secretary or any other authorized officer of the Corporation. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 6.4
Facsimile Signatures
. In addition to the provisions for use of facsimile signatures elsewhere specifically authorized in these Bylaws, facsimile signatures of any officer or officers of the Corporation may be used whenever and as authorized by the Board of Directors or any committee thereof.
Section 6.5
Reliance upon Books, Reports and Records
. The Board of Directors, each committee thereof, each member of the Board of Directors and such committees and each officer of the Corporation shall, in the performance of its, his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation and upon such information, opinions, reports or documents presented to it or them by any of the Corporation’s officers or employees, by any committee of the Board of Directors or by any other person as to matters that the Board of Directors, such committee, such member or such officer reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
Section 6.6
Waiver of Notice
. Whenever any notice is required to be given to any stockholder or director of the Corporation under the provisions of the DGCL, the Certificate of Incorporation or these Bylaws, a waiver thereof in writing, signed by the person or persons entitled to such notice, or a waiver by electronic transmission by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any annual or special meeting of the stockholders or the Board of Directors or committee thereof need be specified in any waiver of notice of such meeting. 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
20
objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened.
Section 6.7
Audits
. The accounts, books and records of the Corporation shall be audited upon the conclusion of each fiscal year by an independent certified public accountant selected by the Board of Directors, or a duly authorized committee thereof, and it shall be the duty of the Board of Directors, or such committee, to cause such audit to be done annually.
Section 6.8
Manner of Notice to Stockholders
. Except as otherwise provided in these Bylaws or permitted by the DGCL, other applicable law or the rules or regulations of the NYSE, notices to stockholders shall be in writing and delivered personally or mailed to the stockholders at their addresses appearing on the books of the Corporation. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at the address of such stockholder as it appears on the records of the Corporation. Any notice to stockholders may be given by electronic transmission to the extent permitted by law.
ARTICLE VII
INDEMNIFICATION
Section 7.1
Right to Indemnification
. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any Covered Person subject to the provisions specified in Article IX of the Certificate of Incorporation. This
Article VII
sets forth additional provisions in furtherance of such right to indemnification.
Section 7.2
Claims
. Unless otherwise agreed by the Corporation and a Covered Person, if a claim for indemnification is made under
Article IX
of the Certificate of Incorporation (following the final disposition of any applicable proceeding) is not paid in full within sixty (60) days after the Corporation has received a claim therefor by the Covered Person, or if a claim for any advancement of expenses under
Article IX
of the Certificate of Incorporation is not paid in full within thirty (30) days after the Corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim. If successful in whole or in part, the Covered Person shall be entitled to be paid the expenses of prosecuting such claim to the fullest extent permitted by law. In any such action, the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.
Section 7.3
Indemnification of Other Persons; Indemnification Agreements
. The provisions of
Article IX
of the Certificate of Incorporation and this
Article VII
of the Bylaws shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to individuals other than Covered Persons, to a greater extent or in a manner otherwise different than provided for in Article IX of the Certificate of Incorporation and this
Article VII,
when and as authorized by appropriate corporate action. In addition to the provisions of
Article IX
of the Certificate of Incorporation and this
Article VII
of
21
the Bylaws, the Corporation may provide for further indemnification, advancement of expenses and the related procedures in one or more indemnification agreements with any Covered Person or such other person as authorized by appropriate corporate action and such indemnification agreements may provide for similar or better terms, to the extent permitted by the DGCL, other applicable law and the Certificate of Incorporation.
ARTICLE VIII
CONTRACTS, PROXIES, ETC.
Section 8.1
Contracts
. Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, any contracts or other instruments may be executed and delivered in the name and on the behalf of the Corporation by such officer or officers of the Corporation as the Board of Directors may from time to time specify. Such authority may be general or confined to specific instances as the Board of Directors may determine. The Chairperson of the Board, the Chief Executive Officer, the Chief Financial Officer, the Secretary or such other persons as the Board of Directors may authorize may execute bonds, contracts, deeds, leases, mortgages, indentures, debentures, notes, certificates and other instruments to be made or executed for or on behalf of the Corporation. Subject to any restrictions imposed by the Board of Directors or the Chairperson of the Board, the Chief Executive Officer, the Chief Financial Officer, the Secretary or such other persons as the Board of Directors may authorize may delegate contractual powers to others under his or her jurisdiction, it being understood, however, that any such delegation of power shall not relieve such person of responsibility with respect to the exercise of such delegated power.
Section 8.2
Proxies
. Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the Board, the Chief Executive Officer, any President, the Chief Financial Officer, the Secretary, an Assistant Secretary or any Vice President may from time to time appoint an attorney or attorneys or agent or agents of the Corporation to, in the name and on behalf of the Corporation, cast the votes that the Corporation may be entitled to cast as the holder of stock or other securities in any other entity, any of whose stock or other securities may be held by the Corporation, at meetings of the holders of the stock or other securities of such other entity, or to consent in writing, in the name of the Corporation as such holder, to any action by such other entity, and may instruct the person or persons so appointed as to the manner of casting such votes or giving such consent, and may execute or cause to be executed, in the name and on behalf of the Corporation and under its corporate seal or otherwise, all such written proxies or other instruments as he or she may deem necessary or proper in the premises.
ARTICLE IX
CERTAIN DEFINITIONS
The following capitalized terms and other terms shall have the meanings assigned thereto in this
Article IX
:
22
“
beneficial owner
” and “
beneficial ownership
” (including the term “
beneficially own
”) shall have the meanings given to such terms in the Certificate of Incorporation.
“
Certificate of Designation
” means a certificate filed pursuant to Article IV of the Certificate of the Incorporation and the DGCL setting forth the terms of a series of Preferred Stock.
“
Class A Common Stock
” means Class A Common Stock of the Corporation, par value $0.01 per share.
“
Class B Common Stock
” means Class B Common Stock of the Corporation, par value $0.01 per share.
“
Common Stock
” means the Class A Common Stock and/or the Class B Common Stock.
“
Covered Person
” means any individual (and the heirs, executors or administrators of such individual) who was or is made or is threatened to be made a party or is otherwise involved in any proceeding, by reason of the fact that he or she, or an individual for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a limited liability company, partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent.
“
Dell Technologies
” shall have the meaning given to such term in the Certificate of Incorporation.
“
Dell Technologies Affiliates
” shall have the meaning given to such term in the Certificate of Incorporation.
“
DGCL
” means the General Corporation Law of the State of Delaware as the same exists or may hereafter be amended.
“
Entire Board of Directors
” shall have the meaning given to such term in the Certificate of Incorporation.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended, together with the rules and regulations promulgated thereunder.
“
NYSE
” means The New York Stock Exchange.
“
person
” means an individual, a partnership (including a limited partnership), a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or other entity, including governmental authorities; each reference to a “
record holder
” or “
record owner
” of shares, if a natural person, shall be deemed
23
to include in his or her representative capacity a guardian, committee, executor, administrator or other legal representative of such natural person or record holder.
“
Preferred Stock
” means Preferred Stock of the Corporation, par value $0.01 per share.
“
proceeding
” means any action, suit or proceeding, whether civil, criminal, administrative or investigative.
“
Proposing Person
” shall mean (1) the stockholder giving the notice required by
Section 2.8(a)
or
Section 2.8(b
), (2) the beneficial owner or beneficial owners, if different, on whose behalf such notice is given, and (3) any affiliates or associates (each within the meaning of Rule 12b-2 under the Exchange Act for purposes of these Bylaws) of such stockholder or beneficial owner.
“
Supervoting Group I Director
” shall have the meaning given to such term in the Certificate of Incorporation.
“
Total Voting Power
” shall have the meaning given to such term in the Certificate of Incorporation.
ARTICLE X
AMENDMENTS
Section 10.1
Amendments
. These Bylaws may be altered, amended or repealed at any meeting of the Board of Directors or of the stockholders. Subject to the rights of holders of any series of Preferred Stock then outstanding, in furtherance and not in limitation of the powers conferred by law, so long as the Dell Technologies Affiliates beneficially own in the aggregate shares of capital stock of the Corporation representing a majority of the Total Voting Power, these Bylaws may be amended, altered or repealed and new bylaws made by the stockholders, in addition to any other vote otherwise required by applicable law or the Certificate of Incorporation, by the affirmative vote of the holders of shares of capital stock of the Corporation representing a majority of the Total Voting Power. At any time when the Dell Technologies Affiliates do not beneficially own in the aggregate shares of capital stock of the Corporation representing a majority of the Total Voting Power, these Bylaws may be amended, altered or repealed and new bylaws made by the stockholders, in addition to any other vote otherwise required by applicable law or the Certificate of Incorporation, by the affirmative vote of the holders of shares of capital stock of the Corporation representing not less than 66
2
/
3
% of the Total Voting Power.
24
Exhibit 10.1
AMENDED AND RESTATED
SHAREHOLDERS’ AGREEMENT
by and among
PIVOTAL SOFTWARE, INC.,
DELL TECHNOLOGIES, INC.,
EMC CORPORATION,
VMWARE, INC.,
GE INTERNATIONAL HOLDINGS B.V.
GENERAL ELECTRIC COMPANY
FORD MOTOR COMPANY
and
MICROSOFT GLOBAL FINANCE
Dated as of , 2018
AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT (this “
Agreement
”) is entered into as of , 2018, by and among (a) Pivotal Software, Inc. (formerly known as GoPivotal, Inc.), a corporation organized and existing under the laws of the State of Delaware (the “
Company
”), (b) Dell Technologies, Inc., a corporation organized and existing under the laws of the State of Delaware, as the successor-in-interest to all of the rights and obligations of EMC Corporation, a corporation organized and existing under the laws of the Commonwealth of Massachusetts (“
EMC
”), under this Agreement, (c) VMware, Inc., a corporation organized and existing under the laws of the State of Delaware, (d) GE International Holdings B.V. (“
GE International
”), (e) General Electric Company, a corporation organized and existing under the laws of the State of New York (“
GE
”), (f) Ford Motor Company, a Delaware corporation (“
Ford
”), and (g) the other Shareholders party to this Agreement from time to time, including as of the date hereof, Microsoft Global Finance, a company organized under the laws of Ireland (“
Microsoft
”). Each of the foregoing is referred to as a “
Party
” and together as the “
Parties.
” Certain capitalized terms used in this Agreement are defined in
Section 1.01
.
W I T N E S S E T H:
WHEREAS, on April 1, 2013, the Company, EMC and VMware entered into the original Shareholders’ Agreement;
WHEREAS, such original Shareholders’ Agreement was last amended and restated as of August 15, 2017 (the “
Amended Agreement
”); and
WHEREAS, the Major Shareholders and the Company wish hereby to amend and restate the Amended Agreement pursuant to Section 7.05 of the Amended Agreement in connection with the Company’s proposed initial public offering of Class A Common Shares (the “
IPO
”) to provide for, among other matters, certain agreements with respect to registration rights and other covenants and agreements among the Shareholders and the Company to take effect upon and after the consummation of the IPO;
NOW, THEREFORE, for and in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, the Major Shareholders and the Company agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01
Defined Terms
. For purposes of this Agreement, the following terms, when used herein, shall have the meanings specified or referred to in this
Section 1.01
:
“
Affiliate
” means, with respect to any specified Person, any other Person that controls, is controlled by, or is under common control with such Person. As used herein, “
control
” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such other Person, whether through ownership of voting securities
or other interests, by contract or otherwise. The terms “
controlled
” and “
controlling
” have meanings correlative to the foregoing.
“
Affiliated Companies
” means (i) with respect to any Dell Technologies Shareholder, any member of the Dell Technologies Group, (ii) with respect to any VMware Shareholder, any member of the VMware Group, (iii) with respect to any GE Shareholder, any member of the GE Group, and (iv) with respect to Ford, any member of the Ford Group.
“
Agreement
” has the meaning set forth in the preamble hereto.
“
beneficially own
” has the meaning of such term defined in Rule 13d-3 under the Exchange Act.
“
Blackout Period
” has the meaning set forth in
Section 3.04
.
“
Business Day
” means any day other than a Saturday, Sunday, or a day on which all banking institutions of New York City are authorized or obligated by law or executive order to close.
“
Class A Common Shares
” means shares of Class A Common Stock, $0.01 par value, of the Company.
“
Class B Common Shares
” means shares of Class B Common Stock, $0.01 par value, of the Company.
“
Closing
” has the meaning set forth in the Contribution Agreement.
“
Common Shares
” means the Class A Common Shares and/or the Class B Common Shares.
“
Company
” has the meaning set forth in the preamble hereto.
“
Company Group
” means the Company and all Subsidiaries of the Company.
“
Company Notice
” has the meaning set forth in
Section 3.02(a)
.
“
Company Securities
” has the meaning set forth in
Section 3.02(b
).
“
Confidential Business Information
” has the meaning set forth in
Section 2.01(b)(iii)
.
“
Confidential Information
” has the meaning set forth in
Section 2.01(b)(i)
.
“
Confidential Technical Information
” has the meaning set forth in
Section 2.01(b)(ii)
.
“
Continuously Effective
” with respect to a specified registration statement, means that such registration statement shall not cease to be effective and available for transfers of Registrable Securities in accordance with the method of distribution set forth therein for longer
2
than five (5) Business Days during the period specified in the relevant provision of this Agreement.
“
Contribution Agreement
” means the Contribution Agreement, dated as of April 1, 2013, among EMC, VMware and the Company, as may be amended or modified from time to time in accordance with the terms thereof.
“
Controlled Affiliate
” means, with respect to any Person, any corporation, limited liability company, joint venture, partnership, trust, association or other entity in which the Person: (i) beneficially owns, either directly or indirectly, 40% or more of (A) the total combined voting power of all classes of voting securities of such entity, (B) the total combined equity interests of such entity, or (C) the capital or profits interest, in the case such entity is a partnership; and (ii) otherwise possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract, or otherwise.
“
Dell Technologies
” means Dell Technologies, Inc., a Delaware corporation, any of its successors by way of merger, consolidation or share exchange, any acquiror of all or substantially all of its assets and any Person of which Dell Technologies, Inc. becomes a Subsidiary.
“
Dell Technologies Group
” means Dell Technologies and all Subsidiaries of Dell Technologies, including EMC and all Subsidiaries of EMC, but excluding the Company and all Subsidiaries of the Company.
“
Dell Technologies Shareholder
” means, to the extent each is a Shareholder, Dell Technologies or any Wholly Owned Subsidiary of Dell Technologies.
“
Demand Registration
” has the meaning set forth in
Section 3.01(a
).
“
Demand Registration Statement
” has the meaning set forth in
Section 3.01(a)
“
Disclosing Party
” has the meaning set forth in
Section 2.01(b)(iv)
.
“
Dispute
” has the meaning set forth in
Section 2.03(a)
.
“
Dispute Resolution Commencement Date
” has the meaning set forth in
Section 2.03(a
).
“
Disputing Party
” or “
Disputing Parties
” means, with respect to any Dispute, (i) to the extent any member of the Dell Technologies Group is party to such Dispute, Dell Technologies, (ii) to the extent any member of the GE Group is party to such Dispute, GE, (iii) to the extent any member of the VMware Group is party to such Dispute, VMware, (iv) to the extent any member of the Company Group is party to such Dispute, the Company, and (v) to the extent any member of Ford Group is a party to such Dispute, Ford.
“
EMC
” has the meaning set forth in the preamble hereto.
3
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC thereunder.
“
Excluded Registration
” means a registration of the Company’s securities under the Securities Act (i) pursuant to a registration statement on Form S-8 (or other registration solely relating to an offering or sale to employees or directors of the Company pursuant to any employee stock plan or other employee benefit arrangement), (ii) pursuant to a registration statement on Form S-4 or Form F-4 (or similar form that relates to a transaction subject to Rule 145 under the Securities Act or any successor rule thereto), (iii) in connection with any dividend or distribution reinvestment (or similar plan), (iv) pursuant to which the Company is offering to exchange its own securities for other securities, (v) in connection with an offering of debt securities convertible into or exchangeable for any capital stock of the Company and any capital stock of the Company issuable upon the conversion or exchange of such debt securities, (vi) pursuant to a shelf registration statement under which only the initial purchasers and subsequent transferees of debt securities of the Company or any Subsidiary thereof that are convertible into or exchangeable for Company capital stock and that are initially issued pursuant to Rule 144A and/or Regulation S (or any successor provision) under the Securities Act may resell such debt securities and sell the Company capital stock into which such debt securities may be converted or exchanged, or (vii) pursuant to
Section 3.01
.
“
Ford
” has the meaning set forth in the preamble hereto.
“
Ford Group
” means Ford and all Controlled Affiliates of Ford.
“
Ford Shareholder
” means, to the extent that each is a Shareholder, Ford or any Controlled Affiliate of Ford.
“
GE
” has the meaning set forth in the preamble hereto.
“
GE Group
” means GE, GE International and all Controlled Affiliates of GE.
“
GE International
” has the meaning set forth in the preamble hereto.
“
GE Shareholder
” means, to the extent that each is a Shareholder, GE, GE International or any Controlled Affiliate of GE.
“
Governmental Approvals
” means any notices, reports or other filings to be made, or any consents, registrations, approvals, permits or authorizations to be obtained from, any Governmental Entity.
“
Governmental Entity
” means any federal, state, local, foreign or international court, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority.
“
Holder
” means a Shareholder that holds Registrable Securities.
4
“
Information
” means information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data.
“
Initiating Holders
” has the meaning set forth in
Section 3.01(a
).
“
IPO
” has the meaning set forth in the preamble of this Agreement.
“
Joinder Agreement
” has the meaning set forth in
Section 4.08
.
“
Major Shareholders
” means, as of the date of this Agreement, each of the Dell Technologies Shareholders, the GE Shareholders, the VMware Shareholders and the Ford Shareholders, and, after the date of this Agreement, each of the Dell Technologies Shareholders, the GE Shareholders, the VMware Shareholders and the Ford Shareholders, but only for so long as, with respect to each of the foregoing, the applicable Shareholders hold at least 5% of the outstanding shares of a class of Common Shares. From such time as any of the Dell Technologies Shareholders, the GE Shareholders, the VMware Shareholders or the Ford Shareholders cease to hold at least 5% of the outstanding shares of a class of Common Shares, such Shareholders shall cease to be a Major Shareholder.
“
Master Transaction Agreement
” means the Master Transaction Agreement, dated as of August 13, 2007, between EMC and VMware, as may be amended or modified from time to time in accordance with the terms thereof.
“
Maximum Number
” when used in connection with an Underwritten Offering, shall mean the maximum number of shares of Company capital stock (or amount of other Registrable Securities) that the Underwriters’ Representative has informed the Company may be included as part of such offering without materially and adversely affecting the success or pricing of such offering.
“
Other Holders
” has the meaning set forth in
Section 3.02(c
).
“
Other Securities
” has the meaning set forth in
Section 3.02(a
).
“
Party
” or “
Parties
” has the meaning set forth in the preamble hereto.
“
Person
” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental body or authority.
“
Piggyback Securities
” has the meaning set forth in
Section 3.02(b)
.
5
“
Preferred Shares
” means any outstanding shares of any class or series of preferred stock of the Company.
“
Primary Holders
” has the meaning set forth in
Section 3.02(b)
.
“
Primary Piggyback Securities
” has the meaning set forth in
Section 3.02(b)
.
“
Qualified IPO
” means a firm commitment underwritten initial Public Offering, the Public Offering price of which results in aggregate gross offering proceeds (before underwriting discounts commissions and fees) of not less than Two Hundred Million Dollars ($200,000,000).
“
Receiving Party
” has the meaning set forth in
Section 2.01(b)(v
).
“
Registrable Securities
” means, with respect to any Holder, all Class A Common Shares held directly or indirectly by such Holder, including any Class A Common Shares issuable or issued upon exercise, conversion or exchange of other securities of the Company beneficially owned by such Holder (including upon conversion of any Class B Common Shares or any Preferred Shares) or by reason of or in connection with a stock dividend, stock split, combination of shares, share subdivision, share exchange, recapitalization, merger, consolidation or other reorganization or transaction. As to any particular Registrable Securities, such Registrable Securities shall cease to be Registrable Securities when (w) a registration statement with respect to their sale by such Person shall have been declared effective under the Securities Act and such securities shall have been disposed of in accordance with such registration statement, (x) they shall have been distributed to the public in accordance with Rule 144 or when they have become eligible for resale under Rule 144 without volume or manner-of-sale restrictions and without the requirement for the Company to be in compliance with the current public information requirement of section (c)(1) of Rule 144, (y) they shall have been otherwise transferred by a Holder to a Person other than a Holder or any of its Subsidiaries, new certificates, if any, for them not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent disposition of them shall not require registration or qualification of them under the Securities Act or any state securities or blue sky law then in effect or (z) they shall have ceased to be outstanding. No Registrable Securities may be registered under more than one registration statement at any one time.
“
Registration Expenses
” means any and all out-of-pocket expenses incident to performance of or compliance with this Agreement, including, without limitation, (i) all SEC registration and filing fees, (ii) all fees and expenses of complying with securities or blue sky laws (including fees and disbursements of counsel for any underwriters in connection with blue sky qualifications of the Registrable Securities) or relating to the Financial Industry Regulatory Authority, (iii) all printing, messenger and delivery expenses, (iv) all fees and expenses incurred in connection with listing (or authorizing for quotation) the Registrable Securities on a securities exchange or automated inter-dealer quotation system pursuant to the requirements hereof, (v) the fees and disbursements of counsel for the Company and of its independent public accountants, (vi) all expenses in connection with the preparation, printing and filing of the registration statement, any preliminary prospectus or final prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to any Holders, underwriters and dealers
6
and all expenses incidental to delivery of the Registrable Securities, (vii) the reasonable fees and disbursements of one firm of counsel, other than the Company’s counsel, selected by the Holders of Registrable Securities being registered, (viii) any fees and disbursements of underwriters customarily paid by the issuers or sellers of securities, and the reasonable fees and expenses of any special experts retained in connection with the requested registration, but excluding underwriting discounts and commissions and transfer taxes, if any, and (ix) the expenses incurred in connection with making “road show” presentations and holding meetings with potential investors to facilitate the distribution and sale of Registrable Securities.
“r
egistration statement
” means a registration statement filed by the Company with the SEC under the Securities Act.
“
Rule 144
” means Rule 144 (or any successor rule to similar effect) promulgated under the Securities Act.
“
Rule 415 Offering
” means an offering on a delayed or continuous basis pursuant to Rule 415 (or any successor rule to similar effect) promulgated under the Securities Act.
“
SEC
” means the U.S. Securities and Exchange Commission.
“
Securities Act
” means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder.
“
Selling Holder
” has the meaning set forth in
Section 3.06(f)
.
“
Shareholder
” means any Person who owns Shares and who is or becomes bound by this Agreement and any assignee of such Person that has executed and delivered a Joinder Agreement pursuant to, and in accordance with,
Section 4.08
.
“
Shares
” means any shares of common stock or preferred stock of the Company, including the Class A Common Shares and the Class B Common Shares.
“
shelf registration statement
” means a registration statement filed with the SEC on Form S-3 or F-3 or Form S-1 or F-1 (or, in each case, any successor form) for a Rule 415 Offering.
“
Subsidiary
” of any Person means a corporation, limited liability company, joint venture, partnership, trust, association or other entity in which such Person: (i) beneficially owns, either directly or indirectly, more than 50% of (A) the total combined voting power of all classes of voting securities of such entity, (B) the total combined equity interests of such entity, or (C) the capital or profits interest, in the case such entity is a partnership; or (ii) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body. For the avoidance of doubt, for purposes of this Agreement, the Company and its Subsidiaries shall not be deemed to be Subsidiaries of any member of the Dell Technologies Group or the VMware Group, and VMware and its Subsidiaries shall not be deemed to be Subsidiaries of Dell Technologies or EMC or otherwise members of the Dell Technologies Group
.
7
“
Transaction Agreements
” has the meaning set forth in the Contribution Agreement.
“
Underwriters’ Representative
” when used in connection with an Underwritten Offering, shall mean the managing underwriter of such offering, or, in the case of a co-managed underwriting, the managing underwriters designated as the Underwriters’ Representative.
“
Underwritten Offering
” shall mean a registration in which securities of the Company are sold to one or more underwriters for reoffering to the public.
“
VMware
” means VMware, Inc., a Delaware corporation, any of its successors by way of merger, consolidation or share exchange, any acquiror of all or substantially all of its assets and any person of which VMware, Inc. becomes a Subsidiary, but shall not include the Company or EMC or any of their respective Subsidiaries (other than VMware, Inc.).
“
VMware Group
” means VMware and all Subsidiaries of VMware.
“
VMware Shareholder
” means, to the extent that each is a Shareholder, VMware or any Wholly Owned Subsidiary of VMware.
“
Wholly Owned Subsidiary
” means, with respect to a Person, each Subsidiary of such Person in which such Person owns (directly or indirectly) all of the outstanding voting equity, voting power, partnership interests or similar ownership interests, except for director’s qualifying shares in nominal amount.
ARTICLE II
COVENANTS AND OTHER MATTERS
Section 2.01
Confidentiality
.
(a)
A Receiving Party shall hold and shall cause each of its Subsidiaries to hold, and shall each cause its and its Subsidiaries’ respective officers, employees, agents, consultants and advisors to hold, in strict confidence and not to disclose or release without the prior written consent of the Disclosing Party, any and all Confidential Information (as defined herein) concerning the Disclosing Party and its Subsidiaries;
provided
, that the Receiving Party may disclose, or may permit disclosure of, Confidential Information (i) to its Affiliated Companies, auditors, attorneys, financial advisors, bankers and other appropriate consultants and advisors who have a need to know such information and, in each case, are informed of their obligation to hold such information confidential to the same extent as is applicable to the Parties and in respect of whose failure to comply with such obligations, the Receiving Party will be responsible, (ii) if the Receiving Party or any of its Affiliated Companies is compelled to disclose any such Confidential Information by judicial or administrative process or (iii) if the Receiving Party reasonably determines in good faith that such disclosure is required by other requirements of applicable law. Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made in connection with any judicial or administrative process, or a Receiving Party determines in good faith that disclosure is otherwise
8
required by law, the Receiving Party shall promptly notify the Disclosing Party of the existence of such request, demand, or conclusion, and shall provide the Disclosing Party a reasonable opportunity to seek an appropriate protective order or other remedy, which the Receiving Party will cooperate in obtaining. In the event that an appropriate protective order or other remedy is not obtained, the Receiving Party shall furnish, or cause to be furnished, only that portion of the Confidential Information that is required to be disclosed and shall use its reasonable best efforts to obtain reasonable assurances that confidential treatment will be accorded to such Information.
(b)
As used in this
Section 2.01
:
(i)
“
Confidential Information
” shall mean the terms and conditions of this Agreement and the Transaction Agreements (as amended from time to time) and the Confidential Business Information and Confidential Technical Information concerning the Disclosing Party and its Subsidiaries disclosed by the Disclosing Party to the Receiving Party on or following the Closing (or, with respect to disclosure by or to GE, on or following May 8, 2013 and with respect to disclosure by or to Ford, on or following August 15, 2017) that (1) is in written, recorded, graphical or other tangible form and is marked “Proprietary,” “Confidential” or “Trade Secret,” (2) is in oral form and identified by the such Disclosing Party as “Proprietary,” “Confidential” or “Trade Secret” at the time of oral disclosure, including pursuant to any other provision of this Agreement, or (3) in the case of such Information disclosed on or prior to the date hereof, is identified by the Disclosing Party to the Receiving Party as Confidential Business Information or Confidential Technical Information, either orally or in writing, on or prior to the Closing, and includes any modifications or derivatives prepared by the Receiving Party that contain or are based upon any Confidential Information obtained from the Disclosing Party, including any analysis, reports, or summaries of the Confidential Information. Confidential Information may also include information disclosed to a Disclosing Party by third parties. Confidential Information shall not, however, include any information which (A) was publicly known or was made generally available in the public domain prior to the time of disclosure by the Disclosing Party; (B) becomes publicly known or made generally available after disclosure by the Disclosing Party to the Receiving Party through no action or inaction of the Receiving Party; (C) is obtained by the Receiving Party from a third party without a breach of such third party’s obligations of confidentiality; (D) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (E) is publicly disclosed with the mutual consent of the affected Shareholders.
(ii)
“
Confidential Technical Information
” shall mean all proprietary scientific, engineering, mathematical or design information, data and material of the Disclosing Party including, without limitation, (a) specifications, ideas, concepts, models, and strategies for products or services, (b) quality assurance policies, procedures and specifications, (c) source code and object code, (d) training materials and information, and (e) all other know-how, methodology,
9
processes, procedures, techniques and trade secrets related to product or service design, development, manufacture, implementation, use, support, and maintenance.
(iii)
“
Confidential Business Information
” shall mean all proprietary information, data or material of the Disclosing Party other than Confidential Technical Information, including, but not limited to (a) proprietary earnings reports and forecasts, (b) proprietary macro-economic reports and forecasts, (c) proprietary business plans, (d) proprietary general market evaluations and surveys, (e) proprietary financing and credit-related information, and (f) customer information.
(iv)
“
Disclosing Party
” shall mean any Party disclosing its Confidential Information.
(v)
“
Receiving Party
” shall mean any Party that receives Confidential Information of another Party.
(c)
Nothing in this Agreement shall restrict (i) the Disclosing Party from using, disclosing, or disseminating its own Confidential Information in any way, or (ii) reassignment of the Receiving Party’s employees. Moreover, nothing in the Agreement supersedes any restriction imposed by third parties on their Confidential Information, and there is no obligation on the Disclosing Party to conform third party agreements to the terms of this Agreement except as expressly set forth therein.
(d)
Notwithstanding anything to the contrary set forth herein, (i) the Parties shall be deemed to have satisfied their obligations hereunder with respect to Confidential Information if they exercise the same degree of care (but no less than a reasonable degree of care) as they take to preserve confidentiality for their own similar Information and (ii) confidentiality obligations provided for in any agreement between such Party or its Subsidiaries and any employee of such Party or any of its Subsidiaries shall remain in full force and effect and (iii) in the event of a conflict between the terms of the provisions set forth herein and any confidentiality obligations provided for in any other agreement between the Disclosing Party and the Receiving Party (or their Subsidiaries), the terms of such other agreement shall supersede the terms hereof.
(e)
Confidential Information of a Party and its Subsidiaries in the possession of and used by another Party as of the Closing (or, with respect to GE, on or following May 8, 2013, and with respect to Ford, on or following August 15, 2017) may continue to be used by such other Party in possession of the Confidential Information in, and only in, the operation of its business, which may include, without limitation, the monitoring and evaluation by a Shareholder of its investment in the Company and the transactions contemplated by this Agreement and Transaction Agreements (as amended from time to time), and may be used only so long as the Confidential Information is maintained in confidence and not disclosed in violation of this
Section 2.01
. Such continued right to use Confidential Information may not be transferred to any third party unless such third party (A) purchases all or substantially all of
10
the business and assets in one transaction or in a series of related transactions for which or in which the relevant Confidential Information is used or employed and (B) expressly agrees in writing to be bound by the provisions of this
Section 2.01
.
(f)
Regardless of any expiration or termination of this Agreement, each Receiving Party must meet its obligations with respect to Confidential Information under this Agreement for three (3) years after receipt of such Confidential Information (except for any source code, which must be kept in strict confidence in perpetuity).
(g)
Notwithstanding anything herein to the contrary, the rights and obligations with respect to Confidential Information of EMC or VMware, solely as between EMC, VMware and their respective Subsidiaries, shall not be governed by this
Section 2.01
, but shall instead be governed by the Master Transaction Agreement.
Section 2.02
Governmental Approvals
. To the extent that any of the transactions contemplated by this Agreement requires any Governmental Approvals, the Parties will use their reasonable best efforts to obtain any such Governmental Approvals.
Section 2.03
Dispute Resolution.
(a)
Any dispute, controversy or claim arising out of or relating to this Agreement, any other Transaction Agreement or the breach, termination or validity thereof (“
Dispute
”) which arises between or among any Disputing Parties shall first be negotiated between appropriate senior executives of the Disputing Parties who shall have the authority to resolve the matter. Such executives shall meet to attempt in good faith to negotiate a resolution of the Dispute prior to pursuing other available remedies, within ten (10) days of receipt by a Party of notice of a Dispute, which date of receipt shall be referred to herein as the “
Dispute Resolution Commencement Date.
” Discussions and correspondence relating to trying to resolve such Dispute shall be treated as confidential information and privileged information of the Disputing Parties developed for the purpose of settlement and shall be exempt from discovery or production and shall not be admissible in any subsequent proceeding between or among the Disputing Parties.
(b)
If the senior executives are unable to resolve the Dispute within sixty (60) days from the Dispute Resolution Commencement Date, then the Dispute will be mediated by a mediator appointed pursuant to the mediation rules of the American Arbitration Association. The Disputing Parties will share the administrative costs of the mediation and the mediator’s fees and expenses equally, and each Disputing Party shall bear all of its other costs and expenses related to the mediation, including but not limited to attorney’s fees, witness fees, and travel expenses. The mediation shall take place in Boston, Massachusetts or in whatever alternative forum on which the Disputing Parties may agree.
(c)
If the Disputing Parties cannot resolve any Dispute through mediation within forty-five (45) days of the appointment of the mediator (or the earlier withdrawal thereof), each Disputing Party shall be entitled to seek relief in a court of competent jurisdiction.
11
(d)
Unless otherwise agreed in writing, the Disputing Parties will continue to provide service and honor all other commitments under this Agreement and each other Transaction Agreement during the course of dispute resolution pursuant to the provisions of this
Section 2.01
with respect to all matters not subject to such dispute, controversy or claim.
ARTICLE III
REGISTRATION RIGHTS
Section 3.01
Demand Registration
.
(a)
If at any time after the closing date of a Qualified IPO, the Company shall receive a written request from any Holder, or group of Holders (such requesting Holder(s), the “
Initiating Holders
”), that holds in the aggregate 10% or more of the Registrable Securities then outstanding and entitled to registration rights under this
Section 3.01(a)
, with respect to a request for registration on a Form S-3, or 25% or more of the Registrable Securities then outstanding and entitled to registration rights under this
Section 3.01(a),
with respect to any other registration request, that the Company effect the registration under the Securities Act of all or any portion of such Initiating Holders’ Registrable Securities (such Registrable Securities being registered constituting at least 5% of the Registrable Securities then outstanding), and specifying the intended method of distribution thereof (including in a Rule 415 Offering, if the Company is then eligible to register such Registrable Securities on Form S-3 (or a successor form) for such offering) (each such request referred to herein as a “
Demand Registration
,” and each registration statement prepared in connection with a Demand Registration, a “
Demand Registration Statement
”), then the Company shall promptly give written notice of such Demand Registration within three (3) Business Days of the receipt of such Demand Registration to the other Holders, and shall, subject to the limitations of this
Article III
, use its reasonable best efforts to effect the registration as promptly as practicable (but in no event later than the 90th day (or the 105th day if the applicable registration form is other than Form S-3) after the receipt of such request) of:
(i)
all Registrable Securities for which the Initiating Holders have requested registration under this
Section 3.01(a)
and
(ii)
all other Registrable Securities that any other Holders have requested the Company to register by request received by the Company within twenty (20) Business Days after such Holders receive the Company’s notice of the Demand Registration;
all to the extent necessary to permit the disposition (in accordance with the intended methods thereof as aforesaid) of the Registrable Securities so to be registered.
(b)
Subject to
Section 3.04
, the Company shall use its reasonable best efforts to keep such Demand Registration Statement Continuously Effective for a period of at least twenty-four (24) months, in the case of a Rule 415 Offering, or, in all other cases, for a period of at least 180 days following the date on which such Demand Registration Statement is declared effective (or for such shorter period which will terminate when all of the Registrable
12
Securities covered by such Demand Registration Statement shall have been sold pursuant thereto), including, if necessary, by filing with the SEC 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, the Exchange Act, any state securities or blue sky laws, or any rules and regulations thereunder;
provided
, that such period during which the Demand Registration Statement shall remain Continuously Effective shall, in the case of an Underwritten Offering, and subject to
Section 3.04
, be extended for such period (if any) as the underwriters shall reasonably require, including to satisfy, in the judgment of counsel to the underwriters, any prospectus delivery requirements imposed by applicable law.
(c)
The Company shall not be obligated to effect more than two (2) Demand Registrations in any calendar year. In no event shall the Company be required to effect more than one Demand Registration hereunder within any six (6)-month period. For purposes of the preceding sentence, a Demand Registration shall not be deemed to have been effected (and, therefore, not requested for purposes of paragraph (a) above), (i) unless a Demand Registration Statement with respect thereto has become effective, (ii) if after such Demand Registration Statement has become effective, the offer, sale or distribution of Registrable Securities thereunder is interfered with by any stop order, injunction or other order or requirement of the SEC or other governmental agency or court for any reason not attributable to any Holder and such effect is not thereafter eliminated or (iii) if the conditions to closing specified in the purchase agreement or underwriting agreement entered into in connection with such registration are not satisfied or waived other than by reason of a failure on the part of any Holder. If the Company shall have complied with its obligations under this
Article III
, a right to a Demand Registration pursuant to this
Section 3.01
shall be deemed to have been satisfied upon the earlier of (x) the date as of which all of the Registrable Securities included therein shall have been sold to the underwriters or distributed pursuant to the Demand Registration Statement and (y) the date as of which such Demand Registration Statement shall have been effective for an aggregate period of at least twenty-four (24) months, in the case of a Rule 415 Offering, or, in all other cases, for a period of at least 180 days following the effectiveness of such Demand Registration Statement.
(d)
The Company may not include in a Demand Registration pursuant to this
Section 3.01
shares of Company capital stock for the account of the Company or any of its Subsidiaries, but, if and to the extent required by a contractual obligation, may, subject to compliance with
Section 3.01(e)
, include shares of Company capital stock for the account of any other Person who holds shares of Company capital stock entitled to be included therein;
provided
, that if the Underwriters’ Representative of any offering described in this
Section 3.01
shall have informed the Company in writing that in its judgment there is a Maximum Number of shares of Company capital stock that all Holders and any other Persons desiring to participate in such Demand Registration may include in such offering, then the Company shall include in such Demand Registration all Registrable Securities requested to be included in such registration by the Holders together with, up to such additional number of shares of Company capital stock that
13
any other Persons entitled to participate in such registration desire to include in such registration up to the Maximum Number that the Underwriters’ Representative has informed the Company may be included in such registration without materially and adversely affecting the success or pricing of such offering;
provided
, that the number of shares of Company capital stock to be offered for the account of all such other Persons participating in such registration shall be reduced in a manner determined by the Company in its sole discretion;
provided
further
, that, in the event that such Underwriters’ Representative advises that less than all of such Registrable Securities may be included in such registration, the number of Registrable Securities shall be allocated
pro
rata
among the participating Holders on the basis of the number of Registrable Securities requested to be included therein by each such Holder.
(e)
No Holder may participate in any Underwritten Offering under this
Section 3.01
and no other Person shall be permitted to participate in any such offering pursuant to this
Section 3.01
unless it completes and executes all customary questionnaires, powers of attorney, custody agreements, underwriting agreements and other customary documents required under the customary terms of such underwriting arrangements. In connection with any Underwritten Offering under this
Section 3.01
, each participating Holder and the Company and, except in the case of a Rule 415 Offering, each other Person shall be a party to the underwriting agreement with the underwriters and may be required to make certain customary representations and warranties and provide certain customary indemnifications for the benefit of the underwriters;
provided
, that the Holders shall not be required to make representations and warranties with respect to the Company or their business and operations and shall not be required to agree to any indemnity or contribution provisions less favorable to them than as are set forth herein.
Section 3.02
Piggyback Registration.
(a)
In the event that the Company at any time after the closing date of a Qualified IPO proposes to register any Shares or other equity securities (collectively, “
Other Securities
”) under the Securities Act, either in connection with a primary offering for cash for the account of the Company, a secondary offering or a combined primary and secondary offering, in each case other than in connection with an Excluded Registration, the Company will each time it intends to effect such a registration, give written notice (a “
Company Notice
”) to all Holders of Registrable Securities at least ten (10) Business Days prior to the initial filing of a registration statement with the SEC pertaining thereto, informing such Holders of its intent to file such registration statement and of the Holders’ right to request the registration of the Registrable Securities held by the Holders provided under this
Section 3.02
Upon the written request of the Holders made within seven (7) Business Days after any such Company Notice is given (which request shall specify the Registrable Securities intended to be disposed of by such Holder and the intended method of distribution thereof,
provided
, if (i) the Registrable Securities intended to be disposed of are Class A Common Shares and (ii) the applicable registration is intended to effect a primary offering of Class A Common Shares for cash for the account of the Company, such request shall specify only the Registrable Securities intended to be disposed of by such Holder), the Company shall use its reasonable best efforts to effect the registration under the Securities Act of all Registrable Securities which the Company has been so requested to register by the Holders to the extent required to permit the disposition (in accordance with the intended methods
14
of distribution thereof or, in the case of a registration which is intended to effect a primary offering of Class A Common Shares for cash for the account of the Company, in accordance with the Company’s intended method of distribution) of the Registrable Securities so requested to be registered, including, if necessary, by filing with the SEC a post-effective amendment or a supplement to the registration statement filed by the Company or the related prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the registration statement filed by the Company, if required by the rules, regulations or instructions applicable to the registration form used by the Company for such registration statement or by the Securities Act, any state securities or blue sky laws, or any rules and regulations thereunder;
provided
, that if, at any time after giving written notice of its intention to register any Other Securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register or to delay such registration of the Other Securities, the Company shall give written notice of such determination to each Holder of Registrable Securities and, thereupon, (i) in the case of a determination not to register, the Company shall be relieved of its obligation to register any Registrable Securities in connection with such registration (but not from its obligation to pay the Registration Expenses incurred in connection therewith or from the Company’s obligations with respect to any subsequent registration) and (ii) in the case of a determination to delay such registration, the Company shall be permitted to delay registration of any Registrable Securities requested to be included in such registration statement for the same period as the delay in registering such Other Securities.
(b)
If, in connection with a registration statement pursuant to this
Section 3.02
, the Underwriters’ Representative of the offering registered thereon shall inform the Company in writing that in its opinion there is a Maximum Number of shares of Company capital stock that may be included therein and if such registration statement relates to an offering initiated by the Company of common stock being offered for the account of the Company, the Company shall include in such registration: (i)
first
, the number of shares the Company proposes to offer (“
Company Securities
”), (ii)
second
, up to the full number of Registrable Securities held by Holders of Registrable Securities who are Major Shareholders (collectively, the “
Primary Holders
”) that are requested to be included in such registration (Registrable Securities that are so held being sometimes referred to herein as “
Primary Piggyback Securities
”) to the extent necessary to reduce the respective total number of shares of Company capital stock requested to be included in such offering to the Maximum Number recommended by such Underwriters’ Representative (and in the event that such Underwriters’ Representative advises that less than all of such Primary Piggyback Securities may be included in such offering, the number of Primary Piggyback Securities shall be allocated
pro
rata
among the Primary Holders on the basis of the number of securities requested to be included therein by each such Primary Holder;
provided
, that such Primary Holders may withdraw their request for registration of their Registrable Securities under this
Section 3.02
and, not less than ninety (90) days subsequent to the effective date of the registration statement for the registration of such Primary Piggyback Securities request, that such registration be effected as a Demand Registration under
Section 3.01
to the extent permitted thereunder); (iii)
third
, up to the full number of Registrable Securities held by Holders of Registrable Securities who are not Major Shareholders (other than the Primary Holders) that are requested to be included in such registration (Registrable Securities that are so
15
held being sometimes referred to herein as “
Piggyback Securities
”) to the extent necessary to reduce the respective total number of shares of Company capital stock requested to be included in such offering to the Maximum Number recommended by such Underwriters’ Representative (and in the event that such Underwriters’ Representative advises that less than all of such Piggyback Securities may be included in such offering, the number of Piggyback Securities shall be allocated
pro
rata
among such holders of such Other Securities (other than Company Securities or Primary Piggyback Securities) on the basis of the number of securities requested to be included therein by each such Holder;
provided
, that such Holders of Registrable Securities may withdraw their request for registration of their Registrable Securities under this
Section 3.02
and, not less than ninety (90) days subsequent to the effective date of the registration statement for the registration of such Other Securities request, that such registration be effected as a Demand Registration under
Section 3.01
to the extent permitted thereunder) and (iv)
fourth
, up to the full number of the Other Securities (other than Company Securities. Primary Piggyback Securities or Piggyback Securities), if any, in excess of the number of Company Securities, Primary Piggyback Securities and Piggyback Securities to be sold in such offering to the extent necessary to reduce the respective total number of shares of Company capital stock requested to be included in such offering to the Maximum Number recommended by such Underwriters’ Representative (and, if such number is less than the full number of such Other Securities, such number shall be allocated
pro
rata
among the holders of such Other Securities (other than Company Securities, Primary Piggyback Securities or Piggyback Securities) on the basis of the number of securities requested to be included therein by each such holder).
(c)
If, in connection with a registration statement pursuant to this
Section 3.02
, the Underwriters’ Representative of the offering registered thereon shall inform the Company in writing that in its opinion there is a Maximum Number of shares of Company capital stock that may be included therein and if such registration statement relates to an offering initiated by any Person other than the Company (the “
Other Holders
”), the Company shall include in such registration the number of securities (including Registrable Securities) that such underwriters advise can be so sold without adversely affecting such offering, allocated
pro
rata
among the Other Holders and the Holders of Registrable Securities on the basis of the number of securities (including Registrable Securities) requested to be included therein by each Other Holder and Holder of Registrable Securities; provided that if the Maximum Number of shares exceeds the number of Registrable Securities requested to be included therein by each Other Holder and Holder, then the Company shall include in such registration: (i)
first
, the number of Registrable Securities the Other Holders propose to offer, (ii)
second
, up to the full number of Registrable Securities held by the Primary Holders that are requested to be included in such registration (and in the event that such Underwriters’ Representative advises that less than all of such Registrable Securities may be included in such offering, the number of shares thereof shall be allocated
pro
rata
among the Primary Holders on the basis of the number of securities requested to be included therein by each such Primary Holder;
provided
, that such Primary Holders may withdraw their request for registration of their Registrable Securities under this
Section 3.02
and, not less than ninety (90) days subsequent to the effective date of the registration statement for the registration of such Registrable Securities request, that such registration be effected as a Demand Registration under
Section 3.01
to the extent permitted thereunder); (iii)
third
, up to the full number of Registrable Securities held by Holders of
16
Registrable Securities (other than the Primary Holders) that are requested to be included in such registration (and in the event that such Underwriters’ Representative advises that less than all of such Piggyback Securities may be included in such offering, the number of Piggyback Securities shall be allocated
pro
rata
among such holders of such Other Securities (other than Company Securities or Primary Piggyback Securities) on the basis of the number of securities requested to be included therein by each such Holder;
provided
, that such Holders of Registrable Securities may withdraw their request for registration of their Registrable Securities under this
Section 3.02
and, not less than ninety (90) days subsequent to the effective date of the registration statement for the registration of such Other Securities request, that such registration be effected as a Demand Registration under
Section 3.01
to the extent permitted thereunder) and (iv)
fourth
, up to the full number of the Other Securities (other than Company Securities, Primary Piggyback Securities or Piggyback Securities), if any, remaining to be sold in such offering to the extent necessary to reduce the respective total number of shares of Company capital stock requested to be included in such offering to the Maximum Number recommended by such Underwriters’ Representative (and, if such number is less than the full number of such Other Securities, such number shall be allocated
pro
rata
among the holders of such Other Securities (other than Company Securities, Primary Piggyback Securities or Piggyback Securities) on the basis of the number of securities requested to be included therein by each such holder).
(d)
No Holder may participate in any Underwritten Offering under this
Section 3.02
and no other Person shall be permitted to participate in any such offering pursuant to this
Section 3.02
unless it completes and executes all customary questionnaires, powers of attorney, custody agreements, underwriting agreements and other customary documents required under the customary terms of such underwriting arrangements. In connection with any Underwritten Offering under this
Section 3.02
, each participating Holder and the Company and each such other Person shall be a party to the underwriting agreement with the underwriters of such offering and may be required to make certain customary representations and warranties and provide certain customary indemnifications for the benefits of the underwriters;
provided
, that the Holders shall not be required to make representations and warranties with respect to the Company or their business and operations and shall not be required to agree to any indemnity or contribution provisions less favorable to them than as are set forth herein.
(e)
Notwithstanding anything in this
Section 3.02
to the contrary, the Company shall not be required to effect any registration of Registrable Securities under this
Section 3.02
incidental to the registration of any of its securities in connection with the Company’s issuance of registered shares of Company capital stock in mergers, acquisitions, reorganizations, exchange offers, subscription offers, dividend reinvestment plans or stock option or other executive or employee benefit or compensation plans.
(f)
The registration rights granted pursuant to the provisions of this
Section 3.02
shall be in addition to the registration rights granted pursuant to
Section 3.01
. No registration of Registrable Securities effected under this
Section 3.02
shall relieve the Company of its obligation to effect a registration of Registrable Securities pursuant to
Section 3.01
.
Section 3.03
Expenses
. Except as provided herein, the Company shall pay all Registration Expenses in connection with all registrations of Registrable Securities.
17
Notwithstanding the foregoing, (a) each Holder of Registrable Securities and the Company shall be responsible for its own internal administrative and similar costs, and (b) each Holder of Registrable Securities shall be responsible for any underwriting discounts and commissions and transfer taxes, if any, relating to any securities sold by such Holder, which underwriting discounts, commissions and transfer taxes shall not constitute Registration Expenses.
Section 3.04
Blackout Period
. Notwithstanding anything in
Section 3.01
,
Section 3.02
or
Section 3.06
to the contrary, the Company shall be entitled to elect that a registration statement not be usable, or that the filing or effectiveness thereof be delayed beyond the time otherwise required, for a reasonable period of time (a “
Blackout Period
”), if the Company reasonably determines in good faith that the registration and distribution of Registrable Securities would (a) interfere with any pending material financing, merger, acquisition, consolidation, recapitalization, corporate reorganization or any other material corporate development involving the Company or any of its Subsidiaries or (b) would require premature disclosure thereof or of other material non-public information that would be detrimental to the Company and in each case the Company promptly gives the Holders of Registrable Securities written notice of such determination, and if requested by Holders and to the extent such action would not violate applicable law, the Company will promptly deliver to the Holders a general statement of the reasons for such postponement or restriction on use and to the extent practicable an approximation of the anticipated delay, and promptly gives the Holders of Registrable Securities written notice at the conclusion of such Blackout Period, provided, however, that the Company shall not invoke more than two (2) Blackout Periods in any twelve (12) month period and such Blackout Periods, in the aggregate, shall not be in excess of one hundred eighty (180) days in any twelve (12) month period. For the avoidance of doubt, the Parties agree that in the event of any Blackout Period, the period during which such registration statement shall remain effective pursuant to the terms of this Agreement shall be correspondingly extended by the length of such Blackout Period.
Section 3.05
Selection of Underwriters
. If any Rule 415 Offering or any offering pursuant to a Demand Registration Statement is an Underwritten Offering, Dell Technologies shall be entitled to select the managing underwriter or underwriters to administer the offering, which managing underwriter shall be reasonably satisfactory to the Company after consultation with the GE Shareholders and the Ford Shareholders to the extent this Agreement shall not have terminated with respect to the GE Shareholders or the Ford Shareholders, as applicable, pursuant to
Section 3.12
;
provided
such right of consultation is personal to the GE Shareholders and the Ford Shareholders and may not be assigned pursuant to
Section 4.08
. The Company shall have the right to select a managing underwriter or underwriters to administer any Underwritten Offering contemplated by
Section 3.02
.
Section 3.06
Obligations of the Company
. If and whenever the Company is required to effect the registration of any Registrable Securities under the Securities Act as provided in this
Article III
, the Company shall as promptly as practicable:
(a)
prepare, file with the SEC and use its reasonable best efforts to cause to become effective a registration statement under the Securities Act relating to the Registrable Securities to be offered;
18
(b)
prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus (including any issuer free writing prospectus required to be so filed) used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities until the earlier of (i) such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition set forth in such registration statement and (ii) the expiration of 180 days after such registration statement becomes effective (or, with respect to Rule 415 Offerings, twenty-four (24) months, as contemplated in
Section 3.01(c)
);
provided
, that such 180-day period, or twenty-four (24)-month period, as applicable shall be extended for such number of days that equals the number of days (1) of any Blackout Period or (2) elapsing from (x) the date the written notice contemplated by paragraph (f) below is given by the Company to (y) the date on which the Company delivers to Holders of Registrable Securities the supplement or amendment contemplated by
Section 3.06(f)
;
(c)
furnish to Holders of Registrable Securities and to any underwriter of such Registrable Securities such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus, any summary prospectus and any issuer free writing prospectus), in conformity with the requirements of the Securities Act, such documents incorporated by reference in such registration statement or prospectus, and such other documents, as Holders of Registrable Securities or such underwriter may reasonably request, and a copy of any and all transmittal letters or other correspondence to or received from the SEC or any other governmental agency or self-regulatory body or other body having jurisdiction (including any domestic or foreign securities exchange) relating to such offering;
(d)
use its reasonable best efforts to register or qualify all Registrable Securities covered by such registration statement under the securities or blue sky laws of such jurisdictions as the Holders of such Registrable Securities or any underwriter to such Registrable Securities shall request, and use its reasonable best efforts to obtain all appropriate registrations, permits and consents in connection therewith, and do any and all other acts and things which may be necessary or advisable to enable the Holders of Registrable Securities or any such underwriter to consummate the disposition in such jurisdictions of its Registrable Securities covered by such registration statement;
provided
, that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any such jurisdiction wherein it is not so qualified or to consent to general service of process in any such jurisdiction;
(e)
with respect to an Underwritten Offering, use its reasonable best efforts to furnish to the Underwriters’ Representative (i) an opinion of counsel for the Company addressed to the Underwriters’ Representative and dated the date of the closing under the underwriting agreement (if any) and (ii) a customary “comfort letter” addressed to the Underwriters’ Representative and signed by the independent public accountants who have audited the financial statements of the Company included in such registration statement, in each such case covering substantially the same matters with respect to such registration statement (and
19
the prospectus included therein) as are customarily covered in opinions of issuer’s counsel and in accountants’ comfort letters delivered to underwriters in underwritten public offerings of securities and such other matters as the Underwriters’ Representative may reasonably request and, in the case of such accountants’ letter, with respect to events subsequent to the date of such financial statements;
(f)
as promptly as practicable, notify each Holder of Registrable Securities included in such registration (each, a “
Selling Holder
”) in writing (i) at any time when a prospectus or, prior to such time as a final prospectus is available, an issuer free writing prospectus relating to a registration made pursuant to
Section 3.01
or
Section 3.02
contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading due to the occurrence of any event and (ii) of any request by the SEC or any other regulatory body or other body having jurisdiction for any amendment of or supplement to any registration statement or other document relating to such offering, and in either such case, at the request of the Selling Holders prepare and furnish to the Selling Holders a reasonable number of copies of a supplement to or an amendment of such prospectus or, prior to such time as a final prospectus is available, such issuer free writing prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include 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 light of the circumstances under which they are made, not misleading;
(g)
if reasonably requested by the lead or managing underwriters, use its reasonable best efforts to list all such Registrable Securities covered by such registration on each securities exchange and automated inter-dealer quotation system on which a class of common equity securities of the Company is then listed;
(h)
to the extent reasonably requested by the lead or managing underwriters, send appropriate officers of the Company to attend any “road shows” scheduled in connection with any such registration, with all out-of-pocket costs and expense incurred by the Company or such officers in connection with such attendance to be paid by the Company;
(i)
furnish or cause to be furnished for delivery in connection with the closing of any offering of Registrable Securities pursuant to a registration effected pursuant to
Section 3.01
or
Section 3.02
unlegended certificates representing ownership of the Registrable Securities being sold in such denominations as shall be requested by the Selling Holders or the underwriters; and
(j)
use its reasonable best efforts to take all other reasonable and customary steps typically taken by issuers to effect the registration and disposition of such Registrable Securities as contemplated hereby.
Section 3.07
Obligations of Selling Holders
. Each Selling Holder agrees by having its securities treated as Registrable Securities hereunder that, upon receipt of written notice from the Company specifying that the prospectus relating to a registration made pursuant
20
to
Section 3.01
or
Section 3.02
contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading due to the occurrence of any event, such Selling Holder will forthwith discontinue disposition of Registrable Securities until such Selling Holder is advised by the Company that the use of the prospectus may be resumed and is furnished with a supplemented or amended prospectus as contemplated by
Section 3.06(f)
above, and, if so directed by the Company, such Selling Holder shall deliver to the Company all copies of the prospectus covering such Registrable Securities then in such Selling Holder’s possession at the time of receipt of such notice.
Section 3.08
Underwriting; Due Diligence
.
(a)
If requested by the underwriters for any Underwritten Offering of Registrable Securities pursuant to a registration requested under this
Article III
, the Company shall enter into an underwriting agreement in a form reasonably satisfactory to the Company with such underwriters for such offering, which agreement will contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnification and contribution provisions substantially to the effect and to the extent provided in
Section 3.09
, and agreements as to the provision of opinions of counsel and accountants’ letters to the effect and to the extent provided in
Section 3.06(e)
. The Selling Holders on whose behalf the Registrable Securities are to be distributed by such underwriters shall be a party to any such underwriting agreement (or, at their option, a party to a customary power of attorney, custody agreement and irrevocable election to sell) and the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters, shall also be made to and for the benefit of such Selling Holders. Such underwriting agreement shall also contain such representations and warranties by such Selling Holders and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, indemnification and contribution provisions substantially to the effect and to the extent provided in
Section 3.09
. If reasonably requested by the Company or the Underwriters’ Representative, (i) the Selling Holders will execute such custody agreements, stock powers, instruments of transfer and powers of attorney in connection with such Underwritten Offering as are customary for offerings of such kind and (ii) the Selling Holders will arrange for any necessary opinions of counsel with respect to the securities being sold by such Selling Holders and the reasonable and documented expenses of such counsel shall be deemed to be Registration Expenses payable by the Company.
(b)
In connection with the preparation and filing of each registration statement registering Registrable Securities under the Securities Act pursuant to this
Article III
, the Company shall give the Holders of such Registrable Securities and the underwriters, if any, and their respective counsel and accountants, such reasonable and customary access to its books and records and such opportunities to discuss the business of the Company with its officers and the independent public accountants who have certified the financial statements of the Company as shall be necessary, in the opinion of such Holders and such underwriters or their respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act;
provided
, that such Holders and the underwriters and their respective counsel and accountants
21
shall use their reasonable best efforts to coordinate any such investigation of the books and records of the Company and any such discussions with the Company’s officers and accountants so that all such investigations occur at the same time and all such discussions occur at the same time.
Section 3.09
Indemnification and Contribution.
(a)
In the case of each offering of Registrable Securities made pursuant to this
Article III
, the Company agrees to indemnify and hold harmless, to the extent permitted by law, each Selling Holder, each underwriter of Registrable Securities so offered and each Person, if any, who controls any of the foregoing Persons within the meaning of the Securities Act and the officers, directors, Affiliates, employees and agents of each of the foregoing, against any and all losses, liabilities, costs (including reasonable expenses of investigation and reasonable attorney’s fees and disbursements), claims and damages, joint or several, to which they or any of them may become subject, under the Securities Act or otherwise, including any amount paid in settlement of any litigation commenced or threatened, insofar as such losses, liabilities, costs, claims and damages (or actions or proceedings in respect thereof, whether or not such indemnified Person is a party thereto) that arise out of or are based upon any untrue statement by the Company or alleged untrue statement by the Company of a material fact contained in the registration statement (or in any preliminary or final prospectus included therein or issuer free writing prospectus related thereto) or in any offering memorandum or other offering document relating to the offering and sale of such Registrable Securities prepared by the Company or at its direction, or any amendment thereof or supplement thereto, or in any document incorporated by reference therein, or any omission by the Company or alleged omission by the Company to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading;
provided
, that the Company shall not be liable to any Person in any such case to the extent that any such loss, liability, cost, claim or damage arises out of or relates to any untrue statement or alleged untrue statement, or any omission, if such statement or omission shall have been made in reliance upon and in conformity with information furnished to the Company in writing by or on behalf of such Selling Holder, any other holder of securities whose securities are included in such registration statement or any such underwriter, as the case may be, specifically for use in such registration statement (or in any preliminary or final prospectus included therein or issuer free writing prospectus related thereto), offering memorandum or other offering document, or any amendment thereof or supplement thereto. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of any Selling Holder or any other holder and shall survive the transfer of such securities. The foregoing indemnity agreement is in addition to any liability that the Company may otherwise have to each Selling Holder, or other holder or underwriter of the Registrable Securities or any controlling person of the foregoing and the officers, directors, Affiliates, employees and agents of each of the foregoing;
provided
, that, in the case of an offering made pursuant to this
Article III
with respect to which a Selling Holder has designated the lead or managing underwriters (or a Selling Holder is offering Registrable Securities directly, without an underwriter), this indemnity does not apply to any loss, liability, cost, claim or damage arising out of or relating to any untrue statement or alleged untrue statement or omission or alleged omission in any preliminary prospectus or offering memorandum if a copy of a final
22
prospectus or offering memorandum was not sent or given by or on behalf of any underwriter (or such Selling Holder or other holder, as the case may be) to such Person asserting such loss, liability, cost, claim or damage at or prior to the written confirmation of the sale of the Registrable Securities as required by the Securities Act and such untrue statement or omission had been corrected in such final prospectus or offering memorandum.
(b)
In the case of each offering of Registrable Securities made pursuant to this
Article III
, each Selling Holder, by exercising its registration rights hereunder, severally and not jointly, agrees to indemnify and hold harmless, to the extent permitted by law, the Company, each underwriter who participates in such offering, each other Selling Holder and each Person, if any, who controls any of the foregoing Persons within the meaning of the Securities Act and the officers, directors, Affiliates, employees and agents of each of the foregoing, against any and all losses, liabilities, costs (including reasonable expenses of investigation and reasonable attorneys’ fees and disbursements), claims and damages to which they or any of them may become subject, under the Securities Act or otherwise, including any amount paid in settlement of any litigation commenced or threatened, insofar as such losses, liabilities, costs, claims and damages (or actions or proceedings in respect thereof, whether or not such indemnified Person is a party thereto) that arise out of or are based upon any untrue statement or alleged untrue statement by such Selling Holder or underwriter, as the case may be, of a material fact contained in the registration statement (or in any preliminary or final prospectus included therein or issuer free writing prospectus related thereto) or in any offering memorandum or other offering document relating to the offering and sale of such Registrable Securities prepared by the Company or at its direction, or any amendment thereof or supplement thereto, or in any document incorporated by reference therein, or any omission by such Selling Holder or underwriter, as the case may be, or alleged omission by such Selling Holder or underwriter, as the case may be, to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that such statement or omission shall have been made in reliance on or in conformity with information furnished to the Company in writing by or on behalf of such Selling Holder or underwriter, as the case may be, specifically for use in such registration statement (or in any preliminary or final prospectus included therein or issuer free writing prospectus related thereto), offering memorandum or other offering document or any amendment thereof or supplement thereto. The foregoing indemnity is in addition to any liability which such Selling Holder or underwriter, as the case may be, may otherwise have to the Company, or controlling persons and the officers, directors, Affiliates, employees, and agents of each of the foregoing;
provided
, that, in the case of an offering made pursuant to this
Article III
with respect to which the Company has designated the lead or managing underwriters (or the Company is offering securities directly, without an underwriter), this indemnity does not apply to any loss, liability, cost, claim, or damage arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission in any preliminary prospectus or offering memorandum if a copy of a final prospectus or offering memorandum was not sent or given by or on behalf of any underwriter (or the Company, as the case may be) to such Person asserting such loss, liability, cost, claim or damage at or prior to the written confirmation of the sale of the Registrable Securities as required by the Securities Act and such untrue statement or omission had been corrected in such final prospectus or offering memorandum;
provided
,
further
, that the
23
obligations of each Selling Holder hereunder shall not apply to amounts paid in settlement of any such claims, losses, damages or liabilities (or actions in respect thereof) if such settlement is effected without the consent of such Holder (which consent shall not be unreasonably withheld).
(c)
Each party indemnified under paragraph (a) or (b) above shall, promptly after receipt of notice of a claim or action against such indemnified party in respect of which indemnity may be sought hereunder, notify the indemnifying party in writing of the claim or action;
provided
that, the failure to notify the indemnifying party shall not relieve it from any liability that it may have to an indemnified party on account of the indemnity agreement contained in paragraph (a) or (b) above except to the extent that the indemnifying party was actually prejudiced by such failure, and in no event shall such failure relieve the indemnifying party from any other liability that it may have to such indemnified party. If any such claim or action shall be brought against an indemnified party, and it shall have notified the indemnifying party thereof, unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified party and indemnifying parties may exist in respect of such claim, the indemnifying party shall be entitled to participate therein, and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this
Section 3.09
for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation. Any indemnifying party against whom indemnity may be sought under this
Section 3.09
shall not be liable to indemnify an indemnified party if such indemnified party settles such claim or action without the consent of the indemnifying party. The indemnifying party may not agree to any settlement of any such claim or action, other than solely for monetary damages for which the indemnifying party shall be responsible hereunder, the result of which any remedy or relief shall be applied to or against the indemnified party, without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld. In any action hereunder as to which the indemnifying party has assumed the defense thereof with counsel satisfactory to the indemnified party, the indemnified party shall continue to be entitled to participate in the defense thereof, with counsel of its own choice, but the indemnifying party shall not be obligated hereunder to reimburse the indemnified party for the costs thereof.
(d)
If the indemnification provided for in this
Section 3.09
shall for any reason be unavailable (other than in accordance with its terms) to an indemnified party in respect of any loss, liability, cost, claim or damage referred to therein, then each indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount paid or payable by such indemnified party as a result of such loss, liability, cost, claim or damage (i) as between the Company and the Selling Holders on the one hand and the underwriters on the other, in such proportion as shall be appropriate to reflect the relative benefits received by the Company and the Selling Holders on the one hand and the underwriters on the other hand or, if such allocation is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits but also the relative fault of the Company and the Selling Holders on the one hand and the underwriters on the other with respect to the statements or omissions which resulted
24
in such loss, liability, cost, claim or damage as well as any other relevant equitable considerations and (ii) as between the Company on the one hand and each Selling Holder on the other, in such proportion as is appropriate to reflect the relative fault of the Company and of each Selling Holder in connection with such statements or omissions as well as any other relevant equitable considerations. The relative benefits received by the Company and the Selling Holders on the one hand and the underwriters on the other shall be deemed to be in the same proportion as the total proceeds from the offering (net of underwriting discounts and commissions but before deducting expenses) received by the Company and the Selling Holders bear to the total underwriting discounts and commissions received by the underwriters, in each case as set forth in the table on the cover page of the prospectus. The relative fault of the Company and the Selling Holders on the one hand and of the underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission to state a material fact relates to information supplied by the Company and the Selling Holders or by the underwriters. The relative fault of the Company on the one hand and of each Selling Holder on the other 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 such party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission, but not by reference to any indemnified party’s stock ownership in the Company. The amount paid or payable by an indemnified party as a result of the loss, cost, claim, damage or liability, or action in respect thereof, referred to above in this
Section 3.09(d)
shall be deemed to include, for purposes of this
Section 3.09(d
), any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. The Company and the Selling Holders agree that it would not be just and equitable if contribution pursuant to this
Section 3.09
were determined by
pro
rata
allocation (even if the underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this paragraph. 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.
(e)
Notwithstanding any other provision of this
Section 3.09
, the obligation to indemnify or contribute shall be several, and not joint, among the Selling Holders who furnished or failed to furnish the information in a registration statement (or in any preliminary or final prospectus included therein or issuer free writing prospectus related thereto) or in any offering memorandum or other offering document relating to the offering and sale of Registrable Securities that resulted in any loss, liability, claim or damages. The liability of each such Selling Holder under this
Section 3.09
shall not, in any event, exceed the amount of the net proceeds actually received by such Selling Holder from the sale of such Registrable Securities.
(f)
Indemnification and contribution similar to that specified in the preceding paragraphs of this
Section 3.09
(with appropriate modifications) shall be given by the Company, the Selling Holders and any underwriters with respect to any required registration or other qualification of securities under any state law or regulation or Governmental Entity.
25
(g)
The obligations of the parties under this
Section 3.09
shall be in addition to any liability which any party may otherwise have to any other party.
Section 3.10
Rule 144 and Form S-3 Eligibility
. Following the closing date of a Qualified IPO, the Company shall use its reasonable best efforts to ensure that the conditions to the availability of Rule 144 set forth in paragraph (c) thereof shall be satisfied. Upon the request of any Holder of Registrable Securities, the Company shall deliver to such Holder a written statement as to whether it has complied with such requirements. The Company further agrees to use its reasonable best efforts to cause all conditions to the availability of Form S-3 (or any successor form) under the Securities Act for the filing of registration statements under this Agreement to be met as soon as reasonably practicable after the closing date of a Qualified IPO.
Section 3.11
Holdback Agreement
.
(a)
If so requested by the Underwriters’ Representative in connection with an offering of securities covered by a registration statement filed by the Company, whether or not Registrable Securities of the Holders are included therein, provided that all Company directors and officers and Company stockholders holding 5% or more of the Company’s capital stock are similarly restricted, each Holder shall agree not to effect any sale or distribution of the Company capital stock, including any sale under Rule 144, without the prior written consent of the Underwriters’ Representative (otherwise than through the registered public offering then being made), within seven (7) days prior to or one hundred eighty (180) days (or such lesser period as the Underwriters’ Representative may permit) after the effective date of the registration statement (or the commencement of the offering to the public of such Registrable Securities in the case of Rule 415 Offerings). The Holders shall not be subject to the restrictions set forth in this
Section 3.11(a)
for longer than an aggregate of one hundred eighty-seven (187) days during any twelve (12)-month period.
(b)
If so requested by the Underwriters’ Representative in connection with an offering of any Registrable Securities, the Company shall agree not to effect any sale or distribution of Company capital stock, without the prior written consent of the Underwriters’ Representative (otherwise than through the registered public offering then being made or in connection with any acquisition or business combination transaction and other than in connection with stock options and employee benefit plans and compensation), within seven (7) days prior to or one hundred eighty (180) days (or such lesser period as the Underwriters’ Representative may permit) after the effective date of the registration statement (or the commencement of the offering to the public of such Registrable Securities in the case of Rule 415 Offerings) and shall use its reasonable best efforts to obtain and enforce similar agreements from any other Persons if requested by the Underwriters’ Representative;
provided
that, the Company or such Persons shall not be subject to the restrictions set forth in this
Section 3.11(b)
for longer than an aggregate of one hundred eighty-seven (187) days during any twelve (12) month period.
(c)
Notwithstanding anything else in this
Section 3.11
to the contrary, no Holder shall be precluded from distributing to any or all of its stockholders any or all of the Registrable Securities.
26
Section 3.12
Term
. This
Article III
shall remain in effect until all Registrable Securities held by Holders have been transferred by them to other Persons;
provided
, that this
Article III
shall terminate with respect to any Party on any earlier date on which such Party no longer holds any Registrable Securities.
Section 3.13
No Superior Rights
. Without the prior written consent of each of the Major Shareholders, the Company shall not provide registration rights of any kind, including rights similar to those set forth in this
ARTICLE III
, with respect to the Class A Common Shares, to any current or future stockholder of the Company other than a Shareholder or its Affiliates that are materially more favorable to such stockholder than are provided to Shareholders under this
ARTICLE III
.
ARTICLE IV
MISCELLANEOUS
Section 4.01
Entire Agreement
. This Agreement, the other Transaction Agreements and the documents referenced herein or therein or attached hereto or thereto, constitute the entire agreement among the Parties with respect to the subject matter hereof and thereof and shall supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof and thereof.
Section 4.02
Governing Law and Jurisdiction
. This Agreement, including the validity hereof and the rights and obligations of the Parties hereunder, shall be construed in accordance with, and all disputes, controversy or claims arising out of or relating to this Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Delaware (without giving effect to the conflicts of law provisions thereof that would cause the application of the laws of any jurisdiction other than the State of Delaware).
Section 4.03
Consent to Jurisdiction
. Subject to
Section 2.03
, each of the Parties irrevocably and unconditionally agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by another Party or its successors or assigns, shall be brought and determined exclusively in the federal and state courts sitting in the State of Delaware. Each of the Parties hereby irrevocably submits and shall cause the members of its Group to submit with regard to any such action or proceeding for itself or for the members of its Group and in respect of its property or the property of the members of its Group, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not and shall cause the members of its Group not to bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts. Each of the Parties hereby irrevocably waives, and agrees not to assert, and shall cause the members of its Group to waive and not to assert by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this
Section 4.03
, (b) any claim that it or its property is exempt or immune
27
from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by the applicable law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
Section 4.04
Specific Performance
. The Parties understand and agree that (a) irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with its specific terms, (b) although monetary damages may be available for the breach of such covenants and agreements such monetary damages are not intended to and do not adequately compensate for the harm that would result from a breach of this Agreement, would be an inadequate remedy therefor and shall not be construed to diminish or otherwise impair in any respect any Party’s right to specific performance and (c) the right of specific performance is an integral part of the transactions contemplated by this Agreement and without that right none of the Parties would have entered into this Agreement. It is accordingly agreed that, in addition to any other remedy that may be available to it, including monetary damages, each of the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement. Each of the Parties further agrees that no Party shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this
Section 4.04
and each Party waives any objection to the imposition of such relief or any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.
Section 4.05
Termination; Amendment; Waiver; Survival
. This Agreement may not be terminated or amended except by mutual consent of the Major Shareholders and the Company (except as provided in the next following sentence), evidenced by an instrument in writing signed on behalf of each such Party;
provided
that if any amendment of this Agreement shall disproportionately and adversely affect a Holder relative to any Major Shareholder, the effectiveness of such amendment shall require the prior written consent of Holders holding a majority of the Registrable Securities held by all such disproportionately and adversely affected Holders. If there are no Major Shareholders, this Agreement may not be terminated or amended except by mutual consent of the Company and Holders of a majority of the Registrable Securities evidenced by an instrument in writing signed on behalf of each such Party;
provided
that if any amendment of this Agreement shall disproportionately and adversely affect a Holder relative to the Holders of a majority of the Registrable Securities, the effectiveness of such amendment shall require the prior written consent of such disproportionately and adversely affected Holder. This Agreement may be waived only by an instrument in writing signed by or on behalf of the Party or Parties waiving compliance. The provisions of
ARTICLE I
(
Definitions
),
Section 2.01
(
Confidentiality
),
Section 2.03
(
Dispute Resolution
),
Section 3.03
(
Expenses
),
Section 3.09
(
Indemnification and Contribution
) and this
ARTICLE IV
shall survive any termination of this Agreement pursuant to this
Section 4.05
.
28
Section 4.06
Notices
. Notices, offers, requests or other communications required or permitted to be given by either party pursuant to the terms of this Agreement shall be given in writing to the respective Parties at the following addresses:
(a)
if to any Dell Technologies Shareholder:
Dell Technologies, Inc.
One Dell Way, MS RR1-33
Round Rock, TX 78682
Attn: Corporate Counsel
(b)
if to any VMware Shareholder:
VMware, Inc.
3401 Hillview Avenue
Palo Alto, CA 94304
Attention: Legal Department
(c)
if to any GE Shareholder:
General Electric Company
GE Digital
2623 Camino Ramon
San Ramon, CA 94583
Attention:
GE Digital
With a copy to
:
General Counsel
GE Digital
(d)
if to any Ford Shareholder:
Ford Motor Company
One American Road, Room 1134
Dearborn, MI 48126
Attn: Secretary
29
(e)
if to Microsoft:
Microsoft Global Finance
c/o Microsoft Corp
One Microsoft Way
Redmond, WA 98052-6399
Attention: Associate General Counsel
Facsimile:
With a copy to (which shall not constitute notice):
Orrick, Herrington & Sutcliffe, LLP
701 Fifth Avenue
Seattle, WA 98104
Attention:
(f)
if to the Company:
Pivotal Software, Inc.
875 Howard Street, 5
th
Floor
San Francisco, CA 94103
Attention: General Counsel
Facsimile:
or to such other address, facsimile number or e-mail address as the party to whom notice is given may have previously furnished to the other in writing as provided herein. All notices may be sent by certified mail, return receipt requested, facsimile, e-mail or other electronic transmission. All notices shall be deemed to have been given when received, if hand delivered; when transmitted, if transmitted by e-mail, facsimile or similar electronic transmission method; one (1) Business Day after it is sent, if sent by recognized overnight courier; and three (3) Business Days after it is postmarked, if mailed first class mail or certified mail, return receipt requested, with postage prepaid.
Section 4.07
Counterparts; Signature
. This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement. If any signature is delivered by facsimile transmission or by PDF, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf the signature is executed) with the same force and effect as if such facsimile or PDF signature were an original thereof.
Section 4.08
Binding Effect; Assignment
. This Agreement shall inure to the benefit of and be binding upon the Parties and their respective legal representatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement. No Party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the Company and the Major Shareholders, and any such assignment
30
without consent shall be void;
provided
that, a Shareholder may assign this Agreement and the rights and obligations hereunder to an Affiliate of such Shareholder if such Affiliate executes and delivers to the Parties a joinder to this Agreement agreeing to be bound by the terms and provisions of this Agreement substantially in the form of
Exhibit A
(a “
Joinder Agreement
”).
Section 4.09
Severability
. If any term or other provision of this Agreement is determined by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the fullest extent possible.
Section 4.10
Failure or Indulgence not Waiver; Remedies Cumulative
. No failure or delay on the part of any Party in the exercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.
Section 4.11
Authority
. Each of the Parties represents to the others that (a) it has the corporate or other requisite power and authority to execute, deliver and perform this Agreement, (b) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate or other actions, (c) it has duly and validly executed and delivered this Agreement, and (d) this Agreement is a legal, valid and binding obligation, enforceable against it in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and general equity principles.
Section 4.12
Interpretation
. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. When a reference is made in this Agreement to an Article or Section, such reference shall be to an Article or Section of this Agreement unless otherwise indicated. The Parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by such Parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. Whenever the words “include” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “hereby,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any law defined or referred to herein or in any agreement or instrument that is referred to herein means
31
such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
Section 4.13
Conflicting Agreements
. None of the provisions of this Agreement are intended to supersede any provision in any other Transaction Agreement or any other agreement with respect to the respective subject matters thereof. In the event of conflict between this Agreement and any other Transaction Agreement or other agreement executed in connection herewith, the provisions of such other agreement shall prevail.
Section 4.14
Third Party Beneficiaries
. None of the provisions of this Agreement shall be for the benefit of or enforceable by any third party, including any creditor of any Person, except as provided in
Section 3.09
. No such third party shall obtain any right under any provision of this Agreement or shall by reasons of any such provision make any claim in respect of any liability (or otherwise) against any Party.
[Signature Page Follows Next]
32
IN WITNESS WHEREOF
, the undersigned have duly executed this Agreement, or have caused this Agreement to be duly executed on their behalf, as of the day and year first hereinabove set forth.
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PIVOTAL SOFTWARE, INC.
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By:
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Name:
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Title:
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[Signature Page to Amended and Restated Shareholders’ Agreement]
IN WITNESS WHEREOF
, the undersigned have duly executed this Agreement, or have caused this Agreement to be duly executed on their behalf, as of the day and year first hereinabove set forth.
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DELL TECHNOLOGIES, INC.
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By:
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Name:
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Title:
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EMC CORPORATION
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By:
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Name:
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Title:
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[Signature Page to Amended and Restated Shareholders’ Agreement]
IN WITNESS WHEREOF
, the undersigned have duly executed this Agreement, or have caused this Agreement to be duly executed on their behalf, as of the day and year first hereinabove set forth.
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VMWARE, INC.
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By:
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Name:
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Title:
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[Signature Page to Amended and Restated Shareholders’ Agreement]
IN WITNESS WHEREOF
, the undersigned have duly executed this Agreement, or have caused this Agreement to be duly executed on their behalf, as of the day and year first hereinabove set forth.
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GENERAL ELECTRIC COMPANY
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By:
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Name:
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Title:
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GE INTERNATIONAL HOLDINGS B.V.
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By:
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Name:
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Title:
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[Signature Page to Amended and Restated Shareholders’ Agreement]
IN WITNESS WHEREOF
, the undersigned have duly executed this Agreement, or have caused this Agreement to be duly executed on their behalf, as of the day and year first hereinabove set forth.
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FORD MOTOR COMPANY
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By:
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Name:
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Title:
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[Signature Page to Amended and Restated Shareholders’ Agreement]
IN WITNESS WHEREOF
, the undersigned have duly executed this Agreement, or have caused this Agreement to be duly executed on their behalf, as of the day and year first hereinabove set forth.
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MICROSOFT GLOBAL FINANCE
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By:
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Name:
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Title:
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[Signature Page to Amended and Restated Shareholders’ Agreement]
EXHIBIT A
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this “
Joinder Agreement
”) is entered into as of the date written below by the undersigned (the “
Joining Party
”) pursuant to, and in accordance with,
Section 4.08
of that certain Amended and Restated Shareholders’ Agreement, dated as of , 2018 (the “
Shareholders’ Agreement
”), by and among Pivotal Software, Inc., a corporation organized under the laws of the State of Delaware, and the other Parties thereto from time to time, as the same may be further amended, supplemented or restated from time to time. Capitalized terms used in this Joinder Agreement but not defined in this Joinder Agreement shall have the respective meanings given to such terms in the Shareholders’ Agreement.
The Joining Party hereby acknowledges, agrees and confirms that (i) the Joining Party is an Affiliate of a Party to the Shareholders’ Agreement (the “
Transferor
”), (ii) the Joining Party has received and reviewed a complete copy of the Shareholders’ Agreement, (iii) agrees that upon execution of this Joinder Agreement, the Joining Party shall become a party to the Shareholders’ Agreement as a Shareholder and shall be fully bound by, and subject to, all of the applicable terms, conditions, representations and warranties and other provisions of the Shareholders’ Agreement with all attendant rights, benefits, duties, restrictions and obligations stated therein as though an original party thereto and shall be deemed a “Shareholder” for all purposes under the Shareholders’ Agreement, and (iv) assumes all of the Transferor’s existing and future liabilities arising under or relating to the Shareholders’ Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Joinder Agreement as of the date written below.
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[NAME OF JOINING PARTY]
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By:
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Name:
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Title:
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Date:
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Address for notices:
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Acknowledged and Agreed:
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PIVOTAL SOFTWARE, INC.
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By:
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Name:
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Title:
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Exhibit 10.10
FORM OF
MASTER TRANSACTION AGREEMENT
between
DELL TECHNOLOGIES INC.
and
PIVOTAL SOFTWARE, INC.
TABLE OF CONTENTS
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ARTICLE I DISTRIBUTION
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1
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Section 1.1
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Distribution Generally
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1
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Section 1.2
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Dell Technologies’ Sole Discretion
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1
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ARTICLE II COVENANTS AND OTHER MATTERS
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2
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Section 2.1
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Other Agreements
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2
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Section 2.2
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Agreement for Exchange of Information
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2
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Section 2.3
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Auditors and Audits; Financial Statements; Accounting Matters
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3
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Section 2.4
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Confidentiality
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8
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Section 2.5
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Privileged Matters
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9
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Section 2.6
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Future Litigation and Other Proceedings
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10
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Section 2.7
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Mail and Other Communications
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11
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Section 2.8
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Payment of Expenses
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11
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Section 2.9
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Dispute Resolution
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12
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Section 2.10
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Consent of Holders of Class B Common Stock
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12
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Section 2.11
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Governmental Approvals
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15
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Section 2.12
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Most Favored Status
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15
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Section 2.13
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Compliance with Legal Policies
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15
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Section 2.14
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Guarantees
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16
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ARTICLE III INDEMNIFICATION
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16
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Section 3.1
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Indemnification by Pivotal
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16
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Section 3.2
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Indemnification by Dell Technologies
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17
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Section 3.3
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Ancillary Agreement Liabilities
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18
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Section 3.4
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Other Agreements Evidencing Indemnification Obligations
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18
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Section 3.5
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Reductions for Insurance Proceeds and Other Recoveries
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18
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Section 3.6
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Procedures for Defense, Settlement and Indemnification of the Third Party Claims
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19
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Section 3.7
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Additional Matters
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20
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Section 3.8
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Survival of Indemnities
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21
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ARTICLE IV MISCELLANEOUS
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21
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Section 4.1
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Limitation of Liability
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21
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Section 4.2
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Entire Agreement
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21
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Section 4.3
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Governing Law and Jurisdiction
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22
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Section 4.4
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Termination; Amendment
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22
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Section 4.5
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Notices
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22
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Section 4.6
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Counterparts
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23
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Section 4.7
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Binding Effect; Assignment
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23
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Section 4.8
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Severability
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23
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Section 4.9
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Failure or Indulgence not Waiver; Remedies Cumulative
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23
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Section 4.10
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Authority
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23
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Section 4.11
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Interpretation
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24
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Section 4.12
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Conflicting Agreements
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24
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i
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Section 4.13
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Third Party Beneficiaries
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24
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Section 4.14
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Consent of Dell Technologies
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ARTICLE V DEFINITIONS
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Section 5.1
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Defined Terms
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MASTER TRANSACTION AGREEMENT
This Master Transaction Agreement is dated as of , 2018, between Dell Technologies Inc., a Delaware corporation (“
Dell Technologies
”), and Pivotal Software, Inc., a Delaware corporation (“
Pivotal
”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in Section 5.1.
RECITALS
WHEREAS, Dell Technologies is the beneficial owner of a majority of the issued and outstanding Common Stock of Pivotal;
WHEREAS, Pivotal is engaged in the business of providing a cloud-native platform for software development and IT operations, as more completely described in a registration statement on Form S-1 (File No. 333-223872) filed with the Securities and Exchange Commission (the “
Commission
”) under the Securities Act (the “
IPO Registration Statement
”); and
WHEREAS, the Parties intend in this Agreement, including any Exhibits and Schedules hereto, to set forth the principal arrangements between Dell Technologies and Pivotal regarding the relationship of the Parties from and after the consummation of the IPO;
NOW, THEREFORE, in consideration of the foregoing and the terms, conditions, covenants and provisions of this Agreement, the Parties mutually covenant and agree as follows:
ARTICLE I
DISTRIBUTION
Section 1.1
Distribution Generally
.
If Dell Technologies, in its sole and absolute discretion, advises Pivotal that Dell Technologies intends to pursue a Distribution, Pivotal agrees to take all action reasonably requested by Dell Technologies to facilitate the Distribution.
Section 1.2
Dell Technologies’ Sole Discretion
.
Dell Technologies shall, in its sole and absolute discretion, determine whether to proceed with all or part of a Distribution, the date of the consummation of the Distribution and all terms of the Distribution, including, without limitation, the form, structure and terms of any transaction(s) and/or offering(s) to effect the Distribution and the timing of and conditions to the consummation of the Distribution. In addition, Dell Technologies may at any time and from time to time until the consummation of the Distribution modify or change the terms of the Distribution, including, without limitation, by accelerating or delaying the timing of the consummation of all or part of the Distribution. Pivotal shall cooperate with Dell Technologies in all respects to accomplish the Distribution and shall, at Dell Technologies’ direction, promptly take any and all actions that Dell Technologies deems reasonably necessary or desirable to effect the Distribution. Without limiting the generality of the foregoing, Pivotal shall, at Dell Technologies’ direction, cooperate with Dell Technologies, and execute and deliver, or use its reasonable best efforts to cause to have executed and delivered, all instruments, including instruments of conveyance, assignment and transfer, and make all filings with, and use its reasonable best efforts to obtain all consents, approvals or authorizations of, any domestic or foreign governmental or regulatory authority requested by Dell Technologies in order to consummate and make effective the Distribution.
ARTICLE II
COVENANTS AND OTHER MATTERS
Section 2.1
Other Agreements
.
Dell Technologies and Pivotal agree to execute or cause to be executed by the appropriate parties and deliver, as appropriate, such other agreements, instruments and other documents as may be necessary or desirable in order to effect the purposes of this Agreement and the Inter-Company Agreements.
Section 2.2
Agreement for Exchange of Information
.
(a)
Generally.
Each of Dell Technologies and Pivotal agrees to provide, or cause to be provided, to the other, at any time, as soon as reasonably practicable after written request therefor, any Information in the possession or under the control of such Party that the requesting Party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting Party (including under applicable securities laws) by a Governmental Authority having jurisdiction over the requesting Party, (ii) for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation or other similar requirements, (iii) to comply with its obligations under this Agreement or any Inter-Company Agreement or (iv) during the period prior to the Distribution Date and thereafter to the extent such Information and cooperation is necessary to comply with such reporting, disclosure, filing or other requirements, for the preparation of financial statements or completing an audit, and as reasonably necessary to conduct the ongoing businesses of Dell Technologies or Pivotal, as the case may be;
provided, however
, that in the event that any Party determines that any such provision of Information could be commercially detrimental, violate any law or agreement, or waive any attorney-client privilege, the Parties shall take all reasonable measures to permit compliance with such obligations in a manner that avoids any such harm or consequence;
provided
,
further
, that if, after taking all such reasonable measures, the Party subject to such law or agreement is unable to provide any Information without violating such law or agreement, such Party shall not be obligated to provide such Information to the extent that it would violate such law or agreement. Each of Dell Technologies and Pivotal agrees to make their respective personnel available to discuss the Information exchanged pursuant to this Section 2.2.
(b)
Internal Accounting Controls; Financial Information.
Each Party shall maintain in effect at its own cost and expense adequate systems and controls for its business to the extent necessary to enable the other Party to satisfy its reporting, tax return, accounting, audit and other obligations. Each Party shall provide, or cause to be provided, to the other Party and its Subsidiaries in such form as such requesting Party shall request, at no charge to the requesting Party, all financial and other data and Information as the requesting Party determines necessary or advisable in order to prepare its financial statements and reports or filings with any Governmental Authority.
(c)
Ownership of Information.
Any Information owned by a Party that is provided to a requesting Party pursuant to this Section 2.2 shall be deemed to remain the property of the providing Party (or Person on whose behalf such Information is being provided). Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such Information.
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(d)
Record Retention.
To facilitate the possible exchange of Information pursuant to this Section 2.2 and other provisions of this Agreement after the IPO Date, each Party agrees to use its reasonable best efforts until the Distribution Date to retain all Information in its respective possession or control substantially in accordance with its respective record retention policies and practices from time to time in effect, and for such longer period as may be required by any Governmental Authority, any litigation matter, any applicable law or any Inter-Company Agreement. Except as set forth in any Inter-Company Agreement, each Party may amend its respective record retention policies at such Party’s discretion;
provided, however,
that if a Party desires to effect any such amendment from the date hereof through the date which is within three (3) years after the Distribution Date, the amending Party must give at least thirty (30) days prior written notice of such amendment to the other Party.
(e)
Limitation of Liability.
Each Party will use its reasonable best efforts to ensure that Information provided to the other Party hereunder is accurate and complete;
provided, however
, no Party shall have any liability to any other Party in the event that any Information exchanged or provided pursuant to this Section 2.2 is found to be inaccurate or incomplete, in the absence of gross negligence or willful misconduct by the Party providing such Information. Neither Party shall have any liability to the other Party if any Information is destroyed or lost after the providing Party has complied with the provisions of Section 2.2(d).
(f)
Other Agreements Providing for Exchange of Information.
The rights and obligations granted under this Section 2.2 are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of Information set forth in this Agreement and any Inter-Company Agreement.
(g)
Production of Witnesses; Records; Cooperation.
For a period of seven (7) years after the first date on which the Dell Technologies Group ceases to beneficially own at least twenty percent (20%) of the then outstanding number of shares of Common Stock, and except in the case of a legal or other proceeding by one Party against the other Party, each Party hereto shall use its reasonable best efforts to make available to the other Party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of such Party as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such person (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents may reasonably be required in connection with any legal, administrative or other proceeding in which the requesting Party may from time to time be involved, regardless of whether such legal, administrative or other proceeding is a matter with respect to which indemnification may be sought hereunder. The requesting Party shall bear all costs and expenses in connection therewith.
Section 2.3
Auditors and Audits; Financial Statements; Accounting Matters
.
Each Party agrees that:
(a)
Selection of Auditors.
(i)
Until the first Dell Technologies fiscal year end occurring after the Distribution Date, Pivotal shall use its reasonable best efforts to select the independent certified public accountants (“
Pivotal’s Auditors
”) used by Dell
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Technologies to serve as Pivotal’s (and its Subsidiaries’) independent certified public accountants (“
Dell Technologies’ Auditors
” and, for the avoidance of doubt, should Dell Technologies at any time change the accounting firm serving as its independent certified public accountants, “Dell Technologies’ Auditors” shall thereafter mean the new firm serving as Dell Technologies’ independent certified public accountants) for purposes of providing an opinion on its consolidated financial statements;
provided, however
, that Pivotal’s Auditors may be different from Dell Technologies’ Auditors if necessary to comply with applicable laws regarding auditor independence and qualifications (
provided
,
further,
that Pivotal shall not take any actions, and shall use its reasonable best efforts to cause its directors, officers and employees not to take any actions, that could reasonably be expected to require Pivotal to engage auditors other than Dell Technologies’ Auditors). The foregoing shall not be construed so as to unlawfully limit any responsibility of the audit committee of Pivotal’s board of directors, pursuant to Rule 10A-3(b)(2) under the Exchange Act, to appoint, compensate, retain and oversee the work of the independent registered public accounting firm Pivotal engages.
(ii)
Until the first Dell Technologies fiscal year end occurring after the Distribution Date, Pivotal shall provide Dell Technologies as much prior notice as reasonably practical of any change in Pivotal’s Auditors for purposes of providing an opinion on its consolidated financial statements.
(b)
Coordination of Annual Audits and Quarterly Reviews.
Until the first Dell Technologies fiscal year end occurring after the Distribution Date, and thereafter to the extent necessary for the purpose of preparing financial statements or completing a financial statement audit, Pivotal shall use its reasonable best efforts to enable Pivotal’s Auditors to complete their annual audit and quarterly review procedures by a date necessary to permit them to provide clearance on Pivotal’s annual and quarterly financial statements on the same date that Dell Technologies’ Auditors provide clearance on Dell Technologies’ annual and quarterly financial statements.
(c)
Annual and Quarterly Financial Statements.
(i)
Until the Distribution Date, Pivotal shall not change its fiscal year.
(ii)
Until the first Dell Technologies fiscal year end occurring after the Distribution Date and thereafter to the extent necessary for the purpose of preparing financial statements or completing a financial statement audit:
(A)
Pivotal shall provide to Dell Technologies on a timely basis all Information that Dell Technologies reasonably requires to meet its schedule for the preparation, printing, filing and public dissemination of Dell Technologies’ annual and quarterly financial statements relating to periods before or including the Distribution Date; and
(B)
without limiting the generality of the foregoing, until the Distribution Date, Pivotal will provide all required financial Information with respect to Pivotal and its Subsidiaries to Pivotal’s Auditors in a sufficient and reasonable time and in sufficient detail to permit Pivotal’s Auditors to take all steps and perform all reviews
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necessary to provide sufficient assistance to Dell Technologies’ Auditors with respect to financial Information to be included or contained in Dell Technologies’ annual and quarterly financial statements relating to periods before or including the Distribution Date.
(iii)
Until the first Pivotal fiscal year end occurring after the Distribution Date and thereafter to the extent necessary for the purpose of preparing financial statements or completing a financial statement audit:
(A)
Dell Technologies shall provide to Pivotal on a timely basis all financial Information that Pivotal reasonably requires to meet its schedule for the preparation, printing, filing and public dissemination of Pivotal’s annual and quarterly financial statements relating to periods before or including the Distribution Date; and
(B)
without limiting the generality of the foregoing, until the Distribution Date, Dell Technologies will provide all required financial Information with respect to Dell Technologies and its Subsidiaries to Dell Technologies’ Auditors in a sufficient and reasonable time and in sufficient detail to permit Dell Technologies’ Auditors to take all steps and perform all reviews necessary to provide sufficient assistance to Pivotal’s Auditors with respect to financial Information to be included or contained in Pivotal’s annual and quarterly financial statements relating to periods before or including the Distribution Date.
(d)
Certifications and Attestations.
(i)
Until the first Dell Technologies fiscal year end occurring after the Distribution Date, and thereafter to the extent necessary for the timely filing by Dell Technologies of annual and quarterly reports under the Exchange Act or in connection with any investigations of prior periods, Pivotal shall cause its principal executive officer and principal financial officer to provide to Dell Technologies on a timely basis and as reasonably requested by Dell Technologies (A) any certificates requested as support for the certifications and attestations required by Sections 302, 906 and 404 of the Sarbanes-Oxley Act of 2002, as amended, to be filed with such annual and quarterly reports, (B) any certificates or other written Information which such principal executive officer or principal financial officer received as support for the certificates provided to Dell Technologies and (C) a reasonable opportunity to discuss with such principal financial officer and other appropriate officers and employees of Pivotal any issues reasonably related to the foregoing.
(ii)
Until the first Pivotal fiscal year end occurring after the Distribution Date, and thereafter to the extent necessary for the timely filing by Pivotal of annual and quarterly reports under the Exchange Act or in connection with any investigations of prior periods, Dell Technologies shall cause its appropriate officers and employees to provide to Pivotal on a timely basis and as reasonably requested by Pivotal (A) any certificates requested as support for the certifications and attestations required by Sections 302, 906 and 404 of the Sarbanes-Oxley Act of 2002, as amended, to be filed with such annual and quarterly reports, (B) any certificates or other Information which such appropriate officers and employees received as support for the certificates provided to
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Pivotal and (C) a reasonable opportunity to discuss with such appropriate officers and employees any issues reasonably related to the foregoing.
(e)
Compliance With Laws, Policies and Regulations.
Until the Distribution Date, Pivotal shall comply with the significant financial accounting and reporting rules, policies and directives of Dell Technologies, as agreed to by the companies’ respective chief accounting officers, and use reasonable efforts to fulfill all timing and reporting requirements applicable to Dell Technologies’ Subsidiaries that are consolidated with Dell Technologies for financial statement purposes. Pivotal shall comply with all financial accounting and reporting rules and policies in all material respects, and fulfill all timing and reporting requirements under applicable federal securities laws and Stock Exchange rules in all material respects. Pivotal shall not be deemed to be in breach of its obligations set forth in this provision to the extent that Pivotal is unable to comply with such obligations as a result of the actions or inactions of Dell Technologies.
(f)
Identity of Personnel Performing the Annual Audit and Quarterly Reviews.
Until the Distribution Date and thereafter to the extent such information and cooperation are necessary for the preparation of financial statements or completing a financial statements audit:
(i)
Pivotal shall authorize Pivotal’s Auditors to make available to Dell Technologies’ Auditors both the personnel who performed or will perform the annual audits and quarterly reviews of Pivotal and work papers related to the annual audits and quarterly reviews of Pivotal, in all cases within a reasonable time prior to Pivotal’s Auditors’ opinion date, so that Dell Technologies’ Auditors are able to perform the procedures they consider necessary to take responsibility for the work of Pivotal’s Auditors as it relates to Dell Technologies’ Auditors’ report on Dell Technologies’ financial statements, all within sufficient time to enable Dell Technologies to meet its timetable for the printing, filing and public dissemination of Dell Technologies’ annual and quarterly statements.
(ii)
Dell Technologies shall authorize Dell Technologies’ Auditors to make available to Pivotal’s Auditors both the personnel who performed or will perform the annual audits and quarterly reviews of Dell Technologies and work papers related to the annual audits and quarterly reviews of Dell Technologies, in all cases within a reasonable time prior to Dell Technologies’ Auditors’ opinion date, so that Pivotal’s Auditors are able to perform the procedures they consider necessary to take responsibility for the work of Dell Technologies’ Auditors as it relates to Pivotal’s Auditors’ report on Pivotal’s financial statements, all within sufficient time to enable Pivotal to meet its timetable for the printing, filing and public dissemination of Pivotal’s annual and quarterly financial statements.
(g)
Access to Books and Records.
Until the Distribution Date and thereafter to the extent such information and cooperation are necessary for the preparation of financial statements or completing a financial statements audit, all governmental audits are complete and the applicable statute of limitations for tax matters has expired:
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(i)
upon reasonable advance notice, Pivotal shall provide Dell Technologies’ internal auditors, counsel and other designated representatives of Dell Technologies access during normal business hours to (A) the premises of Pivotal and its Subsidiaries and all Information (and duplicating rights) within the knowledge, possession or control of Pivotal and its Subsidiaries and (B) the officers and employees of Pivotal and its Subsidiaries, so that Dell Technologies may conduct reasonable audits relating to the financial statements provided by Pivotal pursuant hereto as well as to the internal accounting controls and operations of Pivotal and its Subsidiaries; and
(ii)
upon reasonable advance notice, Dell Technologies shall provide Pivotal’s internal auditors, counsel and other designated representatives of Pivotal access during normal business hours to (A) the premises of Dell Technologies and its Subsidiaries and all Information (and duplicating rights with respect thereto) within the knowledge, possession or control of Dell Technologies and its Subsidiaries and (B) the officers and employees of Dell Technologies and its Subsidiaries, so that Pivotal may conduct reasonable audits relating to the financial statements provided by Dell Technologies pursuant hereto as well as to the internal accounting controls and operations of Dell Technologies and its Subsidiaries.
(h)
Notice of Change in Accounting Principles.
Until the Distribution Date and thereafter if a change in accounting principles by a Party hereto would affect the historical financial statements of the other Party:
(i)
neither Party shall make or adopt any significant changes in its accounting estimates or accounting principles without first consulting with the other Party and, if requested by the other Party, such Party’s independent public accountants with respect thereto;
(ii)
Dell Technologies shall give Pivotal as much prior notice as reasonably practicable of any proposed determination of, or any significant changes in, its accounting estimates or accounting principles, and Dell Technologies will consult with Pivotal and, if requested by Pivotal, Dell Technologies will consult with Pivotal’s Auditors with respect thereto; and
(iii)
Pivotal shall give Dell Technologies as much prior notice as reasonably practicable of any proposed determination of, or any significant changes in, its accounting estimates or accounting principles, and Pivotal will consult with Dell Technologies and, if requested by Dell Technologies, Pivotal will consult with Dell Technologies’ Auditors with respect thereto.
(i)
Conflict With Third-Party Agreements.
Nothing in Section 2.2 or this Section 2.3 shall require Pivotal to violate any agreement with any Person other than the Parties (a “
third party
”) regarding the confidentiality of confidential and proprietary information relating to that third party or its business;
provided, however
, that in the event that Pivotal is required under Section 2.2 or this Section 2.3 to disclose any such information, Pivotal shall use its reasonable best efforts to seek to obtain such third party’s consent to the disclosure of such information.
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Section 2.4
Confidentiality
.
(a)
Confidential Information.
“
Confidential Information
” means non-public technical, business and other information and materials that may be disclosed or otherwise made available by one Party (“
Discloser
”) (whether directly or indirectly by an Affiliate) to the other Party (whether directly or indirectly to an Affiliate) (“
Recipient
”), in any form, that are:
(i)
marked or identified as confidential or proprietary at the time of disclosure; or
(ii)
provided under circumstances (A) reasonably indicating their confidentiality and (B) that would typically result in such information and materials being treated by the Recipient as Confidential Information.
(b)
Responsibilities Regarding Confidential Information
. Recipient will:
(i)
hold Discloser’s Confidential Information in confidence and not disclose such Confidential Information to any third party;
(ii)
not use Discloser’s Confidential Information for any purpose except for the purpose for which it is disclosed (the “
Purpose
”); and
(iii)
take reasonable precautions (at least equivalent to those Recipient takes with respect to its own similar information) to prevent unauthorized disclosure or use of Discloser’s Confidential Information and maintain any source code in strict confidence in perpetuity.
(c)
Representatives
. Recipient may disclose Discloser’s Confidential Information only to its own employees, consultants, Affiliates and advisors (“
Representatives
”) who reasonably require it to carry out their function in connection with the Purpose and have agreed in writing to terms at least as protective as those set forth in this Agreement. Recipient will be responsible for any acts or omissions of its Representatives that, if taken by Recipient, would constitute a breach of this Agreement.
(d)
Exceptions and Clarifications
.
(i)
Recipient’s obligations under this Agreement will not apply to any Confidential Information of Discloser to the extent it:
(A)
is now, or subsequently becomes, generally available through no wrongful act or omission of Recipient or its Representatives;
(B)
was, before receipt from Discloser, or becomes rightfully known to Recipient without confidentiality restrictions through disclosure from a source other than Discloser that does not owe a duty of confidentiality to Discloser with respect to such Confidential Information; or
(C)
is independently developed by Recipient without using any Confidential Information of Discloser.
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(ii)
Recipient may disclose Discloser’s Confidential Information to the extent required by law or regulation. Recipient will give Discloser reasonable advance notice of any such required disclosure and will limit the scope of such disclosure to the minimum required by the law or regulation.
(iii)
Nothing in this Agreement will restrict or limit the right of Recipient to assign personnel for any purpose or to independently develop, offer or otherwise deal in products or services competitive with those of Discloser without using Discloser’s Confidential Information.
(iv)
All Confidential Information disclosed under this Agreement will remain the property of Discloser. No license or right under any intellectual property right is granted under this Agreement or by any disclosure of Confidential Information except as expressly stated in this Agreement.
(e)
Warranty.
Discloser warrants that it has the right to disclose Confidential Information but makes no other warranties, express or implied. CONFIDENTIAL INFORMATION IS PROVIDED ON AN “AS IS” BASIS.
(f)
Non-Disclosure Period.
Regardless of any expiration or termination of this Agreement, Recipient must meet its obligations with respect to Confidential Information under this Agreement for three (3) years after receipt of such Confidential Information (except for any source code, which must be kept in strict confidence in perpetuity). Upon written request of Discloser, Recipient will promptly return to Discloser or destroy (or in the case of electronic data, use commercially reasonable efforts to delete or render practicably inaccessible by Recipient) Confidential Information of Discloser.
Section 2.5
Privileged Matters.
(a)
Dell Technologies and Pivotal agree that their respective rights and obligations to maintain, preserve, assert or waive any or all privileges belonging to either corporation or their respective Subsidiaries with respect to the Pivotal Business or the Dell Technologies Business, including, without limitation, the attorney-client and work product privileges (collectively, “
Privileges
”), shall be governed by the provisions of this Section 2.5. With respect to Privileged Information of Dell Technologies (as defined below), Dell Technologies shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Pivotal shall take no action (nor permit any of its Subsidiaries to take action) without the prior written consent of Dell Technologies that could result in any waiver of any Privilege that could be asserted by Dell Technologies or any of its Subsidiaries under applicable law and this Agreement. With respect to Privileged Information of Pivotal (as defined below), Pivotal shall have sole authority in perpetuity to determine whether to assert or waive any or all Privileges, and Dell Technologies shall take no action (nor permit any of its Subsidiaries to take action) without the prior written consent of Pivotal that could result in any waiver of any Privilege that could be asserted by Pivotal or any of its Subsidiaries under applicable law and this Agreement. The rights and obligations created by this Section 2.5 shall apply to all Information as to which Dell Technologies or Pivotal or any of their respective Subsidiaries would be entitled to assert or has asserted a Privilege without regard to the effect, if any, of the Distribution (“
Privileged Information
”). Privileged Information of Dell Technologies includes but is not
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limited to (i) any and all Information regarding the Dell Technologies Business (other than Information regarding the Pivotal Business), whether or not it is in the possession of Pivotal or any of its Subsidiaries; (ii) all communications subject to a Privilege between counsel for Dell Technologies or its Subsidiaries (including in-house counsel) and any person who, at the time of the communication, was an employee of Dell Technologies or its Subsidiaries, regardless of whether such employee was, is or becomes an employee of Pivotal or any of its Subsidiaries; and (iii) all Information that refers or relates to Privileged Information of Dell Technologies. Privileged Information of Pivotal includes but is not limited to (A) any and all Information regarding the Pivotal Business, whether or not it is in the possession of Dell Technologies or any of its Subsidiaries; (B) all communications subject to a Privilege occurring between counsel for Pivotal or its Subsidiaries (including in-house counsel) and any person who, at the time of the communication, was an employee of Pivotal or its Subsidiaries, regardless of whether such employee was, is or becomes an employee of Dell Technologies or any of its Subsidiaries (other than Pivotal and its Subsidiaries); and (C) all Information that refers or relates to Privileged Information of Pivotal.
(b)
Upon receipt by Dell Technologies or Pivotal, as the case may be, of any subpoena, discovery or other request from any third party that actually calls for or may reasonably be expected to result in the production or disclosure of Privileged Information of the other or if Dell Technologies or Pivotal, as the case may be, obtains knowledge that any current or former Representative of Dell Technologies or Pivotal, as the case may be, has received any subpoena, discovery or other request from any third party that actually calls for or may reasonably be expected to result in the production or disclosure of Privileged Information of the other, Dell Technologies or Pivotal, as the case may be, shall promptly notify the other of the existence of the request (which notice shall be delivered to such other Party no later than five (5) Business Days following the receipt of any such subpoena, discovery or other request) and shall provide the other a reasonable opportunity to review the Information and to assert any rights it may have under this Section 2.5 or otherwise to prevent the production or disclosure of Privileged Information before producing the Privileged Information to any requesting third party. Dell Technologies or Pivotal, as the case may be, will not produce or disclose to any third party any of the other’s Privileged Information under this Section 2.5 unless (i) the other has provided its express written consent to such production or disclosure or (ii) a court of competent jurisdiction has entered an order not subject to interlocutory appeal or review finding that the Information is not entitled to protection from disclosure under any applicable privilege, doctrine or rule.
(c)
The access to Information, witnesses and individuals being granted pursuant to Section 2.2 and Section 2.3 and the disclosure to Pivotal and Dell Technologies of Privileged Information relating to the Pivotal Business or the Dell Technologies Business pursuant to this Agreement shall not be asserted by Dell Technologies or Pivotal to constitute, or otherwise be deemed, a waiver of any Privilege that has been or may be asserted under this Section 2.5 or otherwise. Nothing in this Agreement shall operate to reduce, minimize or condition the rights granted to Dell Technologies and Pivotal in, or the obligations imposed upon Dell Technologies and Pivotal by, this Section 2.5.
Section 2.6
Future Litigation and Other Proceedings
.
After the IPO Date and for a period of seven (7) years after the Distribution Date:
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(a)
in the event that Pivotal (or any of its Subsidiaries or any of its or their respective officers or directors) or Dell Technologies (or any of its Subsidiaries or any of its or their respective officers or directors) at any time after the date hereof initiates or becomes subject to any litigation or other proceedings before any Governmental Authority with respect to which the Parties have no prior agreements (as to indemnification or otherwise), the Party (and its Subsidiaries and its and their respective officers and directors) that has not initiated and is not subject to such litigation or other proceedings shall comply, at the other Party’s expense, with any reasonable requests by the other Party for assistance in connection with such litigation or other proceedings (including by way of provision of Information and making available of directors, officers or employees as witnesses); and
(b)
in the event that Pivotal (or any of its Subsidiaries or any of its or their respective officers or directors) and Dell Technologies (or any of its Subsidiaries or any of its or their respective officers or directors) at any time after the date hereof initiate or become subject to any litigation or other proceedings before any Governmental Authority with respect to which the Parties have no prior agreements (as to indemnification or otherwise), each Party (and its officers and directors) shall, at their own expense, coordinate their strategies and actions with respect to such litigation or other proceedings to the extent such coordination would not be detrimental to their respective interests and shall comply, at the expense of the requesting Party, with any reasonable requests of the other Party for assistance in connection therewith (including by way of provision of Information and making available of directors, officers or employees as witnesses).
Section 2.7
Mail and Other Communications
.
Each of Dell Technologies and Pivotal may receive mail, telegrams, packages and other communications properly belonging to the other. Accordingly, each of Dell Technologies and Pivotal authorizes the other to receive and open all mail, telegrams, packages and other communications received by it and not unambiguously intended for the other Party or any of the other Party’s officers or directors, and to retain the same to the extent that they relate to the business of the receiving Party or, to the extent that they do not relate to the business of the receiving Party, the receiving Party shall promptly deliver such mail, telegrams, packages or other communications, including, without limitation, notices of any liens or encumbrances on any asset transferred to Pivotal (or, in case the same relate to both businesses, copies thereof), to the other Party as provided for in Section 4.5. The provisions of this Section 2.7 are not intended to, and shall not, be deemed to constitute (a) an authorization by either Dell Technologies or Pivotal to permit the other to accept service of process on its behalf and neither Party is or shall be deemed to be the agent of the other for service of process purposes, or (b) a waiver of any Privilege with respect to Privileged Information contained in such mail, telegrams, packages or other communications.
Section 2.8
Payment of Expenses
.
Except as otherwise provided in this Agreement, the Inter-Company Agreements or any other agreement between the Parties relating to the Distribution, (a) all costs and expenses of the Parties hereto in connection with the Distribution shall be paid by Pivotal, and (b) all costs and expenses of the Parties hereto in connection with any matter not relating to the Distribution shall be paid by the Party which incurs such costs or expenses. Notwithstanding the foregoing, Pivotal and Dell Technologies shall each be responsible for their own internal fees, costs and expenses (e.g., salaries of personnel) incurred in connection with the Distribution.
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Section 2.9
Dispute Resolution.
(a)
Any dispute, controversy or claim arising out of or relating to this Agreement or the Inter-Company Agreements, other than the Tax Sharing Agreement, or the breach, termination or validity thereof (“
Dispute
”) which arises between the Parties shall first be negotiated between appropriate senior executives of each Party who shall have the authority to resolve the matter. Such executives shall meet to attempt in good faith to negotiate a resolution of the Dispute, prior to pursuing other available remedies, within ten (10) days of receipt by a Party of notice of a Dispute, which date of receipt shall be referred to herein as the “
Dispute Resolution Commencement Date
.” Discussions and correspondence relating to efforts to resolve such Dispute shall be treated as Confidential Information and Privileged Information of each of Dell Technologies and Pivotal developed for the purpose of settlement and shall be exempt from discovery or production and shall not be admissible in any subsequent proceeding between the Parties.
(b)
If the senior executives are unable to resolve the Dispute within sixty (60) days from the Dispute Resolution Commencement Date, then, the Dispute will be submitted to the boards of directors of Dell Technologies and Pivotal. Representatives of each board of directors shall meet as soon as practicable to attempt in good faith to negotiate a resolution of the Dispute.
(c)
If the representatives of the two boards of directors are unable to resolve the Dispute within one hundred twenty (120) days from the Dispute Resolution Commencement Date, on the request of either Party, the Dispute will be mediated by a mediator appointed pursuant to the mediation rules of the American Arbitration Association. Both Parties will share the administrative costs of the mediation and the mediator’s fees and expenses equally, and each Party shall bear all of its other costs and expenses related to the mediation, including, without limitation, attorney’s fees, witness fees and travel expenses. The mediation shall take place in Santa Clara County, California or in whatever alternative forum on which the Parties may agree.
(d)
If the Parties cannot resolve any Dispute through mediation within forty-five (45) days of the appointment of the mediator (or the earlier withdrawal thereof), each Party shall be entitled to seek relief in a court of competent jurisdiction.
Unless otherwise agreed in writing, the Parties will continue to provide service and honor all other commitments under this Agreement and each Inter-Company Agreement during the course of dispute resolution pursuant to the provisions of this Section 2.9 with respect to all matters not subject to the Dispute.
Section 2.10
Consent of Holders of Class B Common Stock.
(a)
Until the earlier of (1) the first date on which the Dell Technologies Entities cease to beneficially own in the aggregate shares of capital stock of Pivotal representing at least 30% of the Total Voting Power and (2) such time as no shares of Class B common stock are outstanding, the prior affirmative vote (including by written consent) of the holders of a majority of the outstanding shares of the Class B common stock, voting as a separate class, shall be required to authorize Pivotal to, or to authorize or permit any Subsidiary of Pivotal to:
12
(i)
adopt or implement any stockholder rights plan or similar takeover defense measure;
(ii)
enter into any (A) Sale Transaction or (B) sales, transfers or licenses of any Subsidiary, division, operation, business, line of business or intellectual property (other than intellectual property licensing in the ordinary course of business) or patent portfolio (whether by merger, amalgamation, stock sale, asset sale, reorganization, consolidation, share exchange, business combination or otherwise), in each case, held by or of Pivotal or its Subsidiaries to any Person other than Pivotal or one or more Wholly-Owned Subsidiaries for aggregate consideration in all such transactions in excess of $100,000,000 in any calendar-year period;
(iii)
directly or indirectly acquire Stock, Stock Equivalents or assets (including, without limitation, any business or operating unit) of any Person (other than Pivotal or its Subsidiaries), other than capital assets, in each case in a single transaction, or series of related transactions, involving consideration (whether in cash, securities, assets or otherwise, and including Indebtedness assumed by Pivotal or any of its Subsidiaries and Indebtedness of any entity so acquired) paid or delivered by Pivotal and its Subsidiaries in excess of $250,000,000;
provided, however
, this Section 2.10(a)(iii) shall not apply and shall not require the prior affirmative vote of the holders of Class B common stock hereunder in connection with acquisitions of securities pursuant to portfolio investment decisions in the ordinary course of business or transactions to which Pivotal or one or more Wholly-Owned Subsidiaries are the only parties;
(iv)
issue any Stock or any Stock Equivalents, except (A) the issuance of shares of Stock of a Wholly-Owned Subsidiary to Pivotal or another Wholly-Owned Subsidiary, (B) the issuance of Stock upon the conversion, exchange or exercise of any outstanding Stock Equivalents or (C) the issuance of shares of Class A common stock, options to purchase Class A common stock or any other stock option, stock appreciation right, restricted stock unit, restricted stock or other equity award or other right to purchase or that is settled in Class A common stock (each, an “
Equity Award
”), in each case for this clause (C) pursuant to a benefit or compensation plan, including an employee equity or pension plan approved pursuant to Section 2.10(a)(xi), or a dividend reinvestment plan approved by the board of directors of Pivotal (
provided, however,
that notwithstanding this clause (C), the prior affirmative vote of the holders of a majority of the outstanding shares of the Class B common stock hereunder, voting as a separate class, shall be required to authorize the aggregate amount of Equity Awards to be granted in any fiscal year);
(v)
dissolve, liquidate or wind up Pivotal;
(vi)
declare dividends on any class or series of Pivotal capital stock, other than dividends payable solely to Pivotal or to a Wholly-Owned Subsidiary;
(vii)
enter into any arrangement or agreement with any Person which the board of directors of Pivotal determines to be on terms exclusionary to any member of the Dell Technologies Group or that are exclusive to such Person, where such Person is offering or proposes to offer products or services that are substantially
13
equivalent to products and services offered by any member of the Dell Technologies Group;
(viii)
approve, enter into, or adopt, any amendment, modification, repeal or restatement of any Organizational Document of Pivotal or any Subsidiary of Pivotal, whether directly or indirectly, or by merger, consolidation or otherwise, other than any of the foregoing to (A) increase the authorized number of shares of any class of Stock in connection with an issuance thereof approved pursuant to Section 2.10(a)(iv), and/or (B) any amendment, modification, repeal or restatement that is ministerial or administrative in nature and does not otherwise adversely affect any holder of shares of the Class B common stock;
(ix)
(A) acquire any Person, business, line of business or intellectual property portfolio (other than ordinary course intellectual property licensing) (whether by merger, amalgamation, stock purchase, asset purchase, reorganization, consolidation, share exchange, business combination or otherwise), or any investment in any securities or Indebtedness of any Person (other than any then-existing Wholly-Owned Subsidiary and other than cash and cash equivalents and other than liquid investments in connection with ordinary course cash management and pension plan asset investment and similar arrangements), including any joint venture or non-Wholly-Owned Subsidiary, for aggregate consideration payable by Pivotal or any of its Subsidiaries in all such transactions in excess of $250,000,000 in any calendar-year period, and/or (B) other than in connection with a transaction permitted by clause (A) of this Section 2.10(a)(ix), create, incorporate or form any non-Wholly-Owned Subsidiary, other than non-U.S. Subsidiaries only to the extent legally required, in jurisdictions which legally require
de minimis
ownership of equity securities by residents, natural persons or non-Affiliates;
(x)
(A) incur, assume or guarantee any Indebtedness, including for this purpose any receivables, warehouse, securitization or other facility or off-balance sheet financing, in excess of $200,000,000 in the aggregate for all such Indebtedness, including any such financing, other than (x) Indebtedness incurred for liquidity or global cash management purposes in the ordinary course of business, the repayment term of which does not exceed twelve (12) months and (y) ordinary course security deposits and customer or supplier arrangements (but, for the avoidance of doubt, not excluding receivables facilities), and/or (B) any amendment, modification, restatement, termination or refinancing of any existing Indebtedness or any existing off-balance-sheet financing of Pivotal or its Subsidiaries;
(xi)
approve, enter into, adopt, terminate, amend or modify any employee equity or pension plan, other than administrative amendments or modifications thereof or amendments or modifications thereof required by applicable law;
(xii)
enter into any settlement or compromise of any actual or threatened litigation, arbitration, audit, mediation or regulatory, administrative or governmental investigation, inquiry or proceeding that (A) would result in a payment by Pivotal and/or its Subsidiaries in excess of $100,000,000, or (B) would impose a limitation upon the operations of, or other equitable remedy upon, Pivotal or any of its Subsidiaries,
14
in each case that would reasonably be expected to have a material adverse effect on Pivotal and its Subsidiaries, taken as a whole; or
(xiii)
enter into any commercial agreement or capital investment not otherwise referred to in this Section 2.10 involving consideration payable, or committed to be paid, by Pivotal or any of its Subsidiaries to any Person (other than Pivotal or any Wholly-Owned Subsidiaries) in excess of $100,000,000.
(b)
Neither Pivotal nor any of its Subsidiaries shall undertake any action or conduct that would have the effect of indirectly engaging Pivotal or any of its Subsidiaries in activities that the provisions of this Section 2.10 would otherwise prohibit.
Section 2.11
Governmental Approvals
.
To the extent that any of the transactions contemplated by this Agreement requires any Governmental Approvals, the Parties will use their reasonable best efforts to obtain any such Governmental Approvals.
Section 2.12
Most Favored Status
.
Prior to the Distribution Date, Pivotal agrees to sell to Dell Technologies or any member of the Dell Technologies Group upon request any of the Pivotal Group’s commercially available products for internal use by Dell Technologies or any members of the Dell Technologies Group. In the case of the purchase or sale of products from Pivotal to Dell Technologies or any member of the Dell Technologies group solely for their internal use, and not for resale, Pivotal further agrees to hold Dell Technologies (and each member of the Dell Technologies Group) in most favored status. For purposes of this Agreement, “most favored status” means, solely and exclusively, that all of the product prices, terms, warranties and benefits provided by Pivotal to Dell Technologies (and each member of the Dell Technologies Group) shall be comparable to or better than the equivalent terms being offered by Pivotal to any single, then present customer of the Pivotal Group. If Pivotal enters into arrangements with any other customer that provide such customer more favorable terms than have been provided to Dell Technologies (or any member of the Dell Technologies Group) pursuant to the terms of this Section 2.12, the applicable agreements with Dell Technologies (and each member of the Dell Technologies Group) shall thereupon be deemed amended to provide the same terms to Dell Technologies (and each member of the Dell Technologies Group) retroactive to the date of such third party agreement. Notwithstanding the foregoing, Pivotal shall not be obligated to return any monies paid prior to such amendment, or to forego the receipt of any payments then accrued under the then-current arrangement.
Section 2.13
Compliance with Legal Policies.
(a)
For so long as any member of the Dell Technologies Group is providing legal services under the Administrative Services Agreement, Pivotal shall comply with all policies and directives identified by Dell Technologies as critical to legal and regulatory compliance;
provided, however
, that nothing contained herein shall preclude modifications to such policies or directives as shall, in the opinion of counsel to Pivotal or Dell Technologies, be necessary or desirable to comply with then applicable law. Until the Distribution Date, Pivotal shall not adopt policies or directives relating to legal or regulatory compliance that are inconsistent with the policies and directives identified by Dell Technologies as critical to legal and regulatory compliance.
15
(b)
For so long as a Party is providing services under the Administrative Services Agreement, it will take reasonable steps to assure that the employees providing such services comply with all policies and directives identified by the other Party as critical to legal and regulatory compliance that are applicable to such employees.
Section 2.14
Guarantees.
Each Party agrees that it will not renew or extend any lease, contract or agreement guaranteed by the other Party without the consent of the guaranteeing Party unless such renewal or extension is effected without such other Party’s guarantee.
ARTICLE III
INDEMNIFICATION
Section 3.1
Indemnification by Pivotal
.
Except as otherwise provided in this Agreement, Pivotal shall, for itself and as agent for each member of the Pivotal Group, indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the Dell Technologies Indemnitees from and against, and shall reimburse the Dell Technologies Indemnitees with respect to, any and all Losses that any third party seeks to impose upon the Dell Technologies Indemnitees, or which are imposed upon the Dell Technologies Indemnitees, and that relate to, arise or result from, whether prior to or following the IPO Date, any of the following items (without duplication):
(a)
any Pivotal Liabilities;
(b)
any breach by Pivotal or any other member of the Pivotal Group of this Agreement or any Inter-Company Agreement; and
(c)
any Liabilities relating to, arising out of or resulting from any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all information (i) contained in the IPO Registration Statement, any issuer free writing prospectus or any preliminary, final or supplemental prospectus forming a part of the IPO Registration Statement (in each case, other than information provided by Dell Technologies to Pivotal specifically for inclusion in the IPO Registration Statement, any issuer free writing prospectus or any preliminary, final or supplemental prospectus forming a part of the IPO Registration Statement, or in any public filings made by Pivotal with the Commission following the IPO Date), (ii) contained in any public filings made by Pivotal with the Commission after the IPO Date (other than information provided by Dell Technologies to Pivotal specifically for inclusion in such public filings), and (iii) provided by Pivotal to Dell Technologies specifically for inclusion in Dell Technologies’ annual or quarterly reports filed under the Exchange Act following the IPO Date to the extent (A) such information pertains to (x) Pivotal and the Pivotal Group or (y) the Pivotal Business or (B) Dell Technologies has provided prior written notice to Pivotal that such information will be included in one or more such annual or quarterly reports, specifying how such information will be presented, and the information is included in such annual or quarterly reports,
provided, however
, that this sub-clause (B) shall not apply to the extent that any such Liability arises out of or results from, or in connection with, any action or inaction of any member of the Dell Technologies Group, including as a result of (1) any misstatement or omission of any information by any member of the Dell Technologies Group to Pivotal or (2) any failure to use any updated or supplemented information provided by any
16
member of the Pivotal Group to Dell Technologies before the publication of the applicable annual or quarterly report
.
In the event that any member of the
Pivotal Group makes a payment to the Dell Technologies Indemnitees hereunder, and any of the Dell Technologies Indemnitees subsequently diminishes the Liability on account of which such payment was made, either directly or through a third-party recovery (other than a recovery indirectly from Dell Technologies), Dell Technologies will promptly repay (or will procure an applicable Dell Technologies Indemnitee to promptly repay) such member of the Pivotal Group the amount by which the payment made by such member of the Pivotal Group exceeds the actual cost of the associated indemnified Liability.
Section 3.2
Indemnification by Dell Technologies
.
Except as otherwise provided in this Agreement, Dell Technologies shall, for itself and as agent for each member of the Dell Technologies Group, indemnify, defend (or, where applicable, pay the defense costs for) and hold harmless the Pivotal Indemnitees from and against, and shall reimburse the Pivotal Indemnitees with respect to, any and all Losses that any third party seeks to impose upon the Pivotal Indemnitees, or which are imposed upon the Pivotal Indemnitees, and that relate to, arise or result from, whether prior to or following the IPO Date, any of the following items (without duplication):
(a)
any Liability of the Dell Technologies Group and all Liabilities arising out of the operation or conduct of the Dell Technologies Business (in each case excluding the Pivotal Liabilities);
(b)
any breach by Dell Technologies or any other member of the Dell Technologies Group of this Agreement or any Inter-Company Agreement; and
(c)
any Liabilities relating to, arising out of or resulting from any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all information (i) contained in the IPO Registration Statement, any issuer free writing prospectus or any preliminary, final or supplemental prospectus forming a part of the IPO Registration Statement provided by Dell Technologies specifically for inclusion therein to the extent such information pertains to Dell Technologies and the Dell Technologies Group or the Dell Technologies Business and (ii) provided by Dell Technologies to Pivotal specifically for inclusion in Pivotal’s annual or quarterly reports filed under the Exchange Act following the IPO Date to the extent (A) such information pertains to (x) Dell Technologies and the Dell Technologies Group or (y) the Dell Technologies Business or (B) Pivotal has provided prior written notice to Dell Technologies that such information will be included in one or more such annual or quarterly reports, specifying how such information will be presented, and the information is included in such annual or quarterly reports,
provided, however
, that this sub-clause (B) shall not apply to the extent that any such Liability arises out of or results from, or in connection with, any action or inaction of any member of the Pivotal Group, including as a result of (1) any misstatement or omission of any information by any member of the Pivotal Group to Dell Technologies or (2) any failure to use any updated or supplemented information provided by any member of the Dell Technologies Group to Pivotal before the publication of the applicable annual or quarterly report.
17
In the event that any member of the
Dell Technologies Group makes a payment to the Pivotal Indemnitees hereunder, and any of the Pivotal Indemnitees subsequently diminishes the Liability on account of which such payment was made, either directly or through a third-party recovery (other than a recovery indirectly from Pivotal), Pivotal will promptly repay (or will procure an applicable Pivotal Indemnitee to promptly repay) such member of the Dell Technologies Group the amount by which the payment made by such member of the Dell Technologies Group exceeds the actual cost of the indemnified Liability.
Section 3.3
Ancillary Agreement Liabilities
.
Notwithstanding any other provision in this Agreement to the contrary, any Liability specifically assumed by, or allocated to, a Party in any Inter-Company Agreement shall be governed exclusively by the terms of such Inter-Company Agreement.
Section 3.4
Other Agreements Evidencing Indemnification Obligations
.
Dell Technologies hereby agrees to execute, for the benefit of any Pivotal Indemnitee, such documents as may be reasonably requested by such Pivotal Indemnitee, evidencing Dell Technologies’ agreement that the indemnification obligations of Dell Technologies set forth in this Agreement inure to the benefit of and are enforceable by such Pivotal Indemnitee. Pivotal hereby agrees to execute, for the benefit of any Dell Technologies Indemnitee, such documents as may be reasonably requested by such Dell Technologies Indemnitee, evidencing Pivotal’s agreement that the indemnification obligations of Pivotal set forth in this Agreement inure to the benefit of and are enforceable by such Dell Technologies Indemnitee.
Section 3.5
Reductions for Insurance Proceeds and Other Recoveries
(a)
Insurance Proceeds
. The amount that any Indemnifying Party is or may be required to provide indemnification to or on behalf of any Indemnitee pursuant to
Section 3.1 or
Section 3.2, as applicable, shall be reduced (retroactively or prospectively) by any Insurance Proceeds or other amounts actually recovered from third parties by or on behalf of such Indemnitee in respect of the related Loss. The existence of a claim by an Indemnitee for monies from an insurer or against a third party in respect of any indemnifiable Loss shall not, however, delay any payment pursuant to the indemnification provisions contained herein and otherwise determined to be due and owing by an Indemnifying Party. Rather, the Indemnifying Party shall make payment in full of the amount determined to be due and owing by it against an assignment by the Indemnitee to the Indemnifying Party of the entire claim of the Indemnitee for Insurance Proceeds or against such third party. Notwithstanding any other provisions of this Agreement, it is the intention of the Parties that no insurer or any other third party shall be (i) entitled to a benefit it would not be entitled to receive in the absence of the foregoing indemnification provisions, or (ii) relieved of the responsibility to pay any claims for which it is obligated. If an Indemnitee has received the payment required by this Agreement from an Indemnifying Party in respect of any indemnifiable Loss and later receives Insurance Proceeds or other amounts in respect of such indemnifiable Loss, then such Indemnitee shall hold such Insurance Proceeds or other amounts in trust for the benefit of the Indemnifying Party (or Indemnifying Parties) and shall pay to the Indemnifying Party, as promptly as practicable after receipt, a sum equal to the amount of such Insurance Proceeds or other amounts received, up to the aggregate amount of any payments received from the Indemnifying Party pursuant to this Agreement in respect of such indemnifiable Loss (or, if there is more than one Indemnifying Party, the Indemnitee shall pay
18
each Indemnifying Party, its proportionate share (based on payments received from the Indemnifying Parties) of such Insurance Proceeds).
(b)
Tax Cost/Tax Benefit
. The amount that any Indemnifying Party is or may be required to provide indemnification to or on behalf of any Indemnitee pursuant to Section 3.1 or Section 3.2, as applicable, shall be (i) increased to take account of any net Tax cost incurred by the Indemnitee arising from the receipt or accrual of an indemnification payment hereunder (grossed up for such increase), and (ii) reduced to take account of any net Tax benefit realized by the Indemnitee arising from incurring or paying any indemnified Loss or other Liability. In computing the amount of any such Tax cost or Tax benefit, the Indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit before recognizing any item arising from the receipt or accrual of any indemnification payment hereunder or incurring or paying any indemnified Loss. Any indemnification payment hereunder shall initially be made without regard to this Section 3.5(b) and shall be increased or reduced to reflect any such net Tax cost (including gross-up) or net Tax benefit only after the Indemnitee has actually realized such cost or benefit. For purposes of this Agreement, an Indemnitee shall be deemed to have “actually realized” a net Tax cost or a net Tax benefit to the extent that, and at such time as, the amount of Taxes payable by such Indemnitee is increased above or reduced below, as the case may be, the amount of Taxes that such Indemnitee would be required to pay but for the receipt or accrual of the indemnification payment or the incurrence or payment of such Loss, as the case may be. The amount of any increase or reduction hereunder shall be adjusted to reflect any Final Determination (as defined in the Tax Sharing Agreement) with respect to the Indemnitee’s liability for Taxes, and payments between such indemnified parties to reflect such adjustment shall be made if necessary. Notwithstanding any other provision of this Agreement, to the extent permitted by applicable law, the Parties hereto agree that any indemnity payment made hereunder shall be treated as a capital contribution or dividend distribution, as the case may be, immediately prior to the IPO Date and, accordingly, not includible in the taxable income of the recipient or deductible by the payor.
Section 3.6
Procedures for Defense, Settlement and Indemnification of the Third Party Claims
.
(a)
Notice of Claims
. If an Indemnitee shall receive notice or otherwise learn of the assertion by a Person (including any Governmental Authority) who is not a member of the Dell Technologies Group or the Pivotal Group of any claim or of the commencement by any such Person of any Action (collectively, a “
Third Party Claim
”) with respect to which an Indemnifying Party may be obligated to provide indemnification pursuant to Section 3.1 or Section 3.2, as applicable, Dell Technologies and Pivotal (as applicable) will ensure that such Indemnitee shall give such Indemnifying Party written notice thereof within thirty (30) days after becoming aware of such Third Party Claim. Any such notice shall describe the Third Party Claim in reasonable detail. Notwithstanding the foregoing, the delay or failure of any Indemnitee or other Person to give notice as provided in this Section 3.6(a) shall not relieve the related Indemnifying Party of its obligations under this ARTICLE III, except to the extent that such Indemnifying Party is actually and substantially prejudiced by such delay or failure to give notice.
(b)
Defense by Indemnifying Party
. An Indemnifying Party shall be entitled to participate in the defense of any Third Party Claim and, to the extent that it wishes, at
19
its cost, risk and expense, to assume the defense thereof, with counsel reasonably satisfactory to the party seeking indemnification. After timely notice from the Indemnifying Party to the Indemnitee of such election to so assume the defense thereof, the Indemnifying Party shall not be liable to the party seeking indemnification for any legal expenses of other counsel or any other expenses subsequently incurred by Indemnitee in connection with the defense thereof. The Indemnitee agrees to cooperate in all reasonable respects with the Indemnifying Party and its counsel in the defense against any Third Party Claim. The Indemnifying Party shall be entitled to compromise or settle any Third Party Claim as to which it is providing indemnification, which compromise or settlement shall be made only with the written consent of the Indemnitee, such consent not to be unreasonably withheld, conditioned or delayed.
(c)
Defense by Indemnitee
. If an Indemnifying Party fails to assume the defense of a Third Party Claim within thirty (30) days after receipt of notice of such claim, the Indemnitee will, upon delivering notice to such effect to the Indemnifying Party, have the right to undertake the defense, compromise or settlement of such Third Party Claim on behalf of and for the account of the Indemnifying Party subject to the limitations as set forth in this Section 3.6;
provided, however
, that such Third Party Claim shall not be compromised or settled without the written consent of the Indemnifying Party, which consent shall not be unreasonably withheld. If the Indemnitee assumes the defense of any Third Party Claim, it shall keep the Indemnifying Party reasonably informed of the progress of any such defense, compromise or settlement. The Indemnifying Party shall reimburse all such costs and expenses of the Indemnitee in the event it is ultimately determined that the Indemnifying Party is obligated to indemnify the Indemnitee with respect to such Third Party Claim. In no event shall an Indemnifying Party be liable for any settlement effected without its consent, which consent will not be unreasonably withheld, conditioned or delayed.
Section 3.7
Additional Matters
.
(a)
Cooperation in Defense and Settlement
. With respect to any Third Party Claim that implicates both Pivotal and Dell Technologies in a material fashion due to the allocation of Liabilities, responsibilities for management of defense and related indemnities set forth in this Agreement or any Inter-Company Agreement, the Parties agree to cooperate fully and maintain a joint defense (in a manner that will preserve the attorney-client privilege, joint defense or other privilege with respect thereto) so as to minimize such Liabilities and defense costs associated therewith. The Party that is not responsible for managing the defense of such Third Party Claims shall, upon reasonable request, be consulted with respect to significant matters relating thereto and may, if necessary or helpful, associate counsel to assist in the defense of such Third Party Claims.
(b)
Pre-IPO Date Actions.
Except with respect to matters pertaining solely to, or solely in connection with, the Pivotal Business, Dell Technologies may, in its sole discretion, have exclusive authority and control over the investigation, prosecution, defense and appeal of all Actions pending at the IPO Date relating to or arising in connection with, in any manner, the Pivotal assets or the Pivotal Liabilities if Dell Technologies or other member of the Dell Technologies Group is named as a party thereto;
provided, however
, that Dell Technologies must obtain the written consent of Pivotal, such consent not to be unreasonably withheld, conditioned or delayed, to settle or compromise or consent to the entry of judgment with respect to such Action. After any such compromise, settlement, consent to entry of judgment or entry of
20
judgment,
Dell Technologies shall reasonably and fairly allocate to Pivotal, and Pivotal shall be responsible for, Pivotal’s proportionate share of any such compromise, settlement, consent or judgment attributable to the Pivotal Business, the Pivotal assets or the Pivotal Liabilities, including its proportionate share of the costs and expenses associated with defending such Action.
(c)
Substitution
. In the event of an Action in which the Indemnifying Party is not a named defendant, if either the Indemnitee or the Indemnifying Party shall so request, the Parties shall endeavor to substitute the Indemnifying Party for the named defendant. If such substitution or addition cannot be achieved for any reason or is not requested, the rights and obligations of the Parties regarding indemnification and the management of the defense of claims as set forth in this
ARTICLE III shall not be altered.
(d)
Subrogation
. In the event of payment by or on behalf of any Indemnifying Party to or on behalf of any Indemnitee in connection with any Third Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnitee, in whole or in part based upon whether the Indemnifying Party has paid all or only part of the Indemnitee’s Liability, as to any events or circumstances in respect of which such Indemnitee may have any right, defense or claim relating to such Third Party Claim against any claimant or plaintiff asserting such Third Party Claim or against any other person. Such Indemnitee shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.
Section 3.8
Survival of Indemnities
. Subject to Section 3.4, the rights and obligations of the members of the Dell Technologies Group and the Pivotal Group under this ARTICLE III shall survive (a) the sale or other transfer by any Party of any assets or businesses or the assignment by it of any Liabilities, (b) the sale by any member of the Dell Technologies Group or the Pivotal Group of the capital stock or other equity interests of any Subsidiary to any Person or (c) any merger, consolidation, business combination, sale of all or substantially all of its assets, restructuring, recapitalization, reorganization or similar transaction involving either Party.
ARTICLE IV
MISCELLANEOUS
Section 4.1
Limitation of Liability
.
IN NO EVENT SHALL ANY MEMBER OF THE DELL TECHNOLOGIES GROUP OR PIVOTAL GROUP BE LIABLE TO ANY OTHER MEMBER OF THE DELL TECHNOLOGIES GROUP OR PIVOTAL GROUP FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
PROVIDED
,
HOWEVER
, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY’S INDEMNIFICATION OBLIGATIONS FOR LIABILITIES AS SET FORTH IN THIS AGREEMENT OR IN ANY INTER-COMPANY AGREEMENT.
Section 4.2
Entire Agreement
.
This Agreement, the Inter-Company Agreements and any Exhibits and Schedules referenced or attached hereto and thereto constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof and shall
21
supersede all prior written and oral and all contemporaneous oral agreements and understandings with respect to the subject matter hereof and thereof.
Section 4.3
Governing Law and Jurisdiction
.
This Agreement, including the validity hereof and the rights and obligations of the Parties hereunder, shall be construed in accordance with, and all Disputes hereunder shall be governed by, the laws of the state of Delaware applicable to contracts made and to be performed entirely in such state (without giving effect to the conflicts of laws provisions thereof).
Section 4.4
Termination; Amendment
.
This Agreement and any Inter-Company Agreement may be terminated or amended at any time by mutual consent of Dell Technologies and Pivotal, evidenced by an instrument in writing signed on behalf of each of the Parties. In the event of termination pursuant to this Section 4.4, neither Party shall have any liability of any kind to the other Party. Except as otherwise provided herein or required by the provisions hereof, this Agreement shall terminate on the date that is three (3) years after the first date on which the Dell Technologies Group ceases to beneficially own at least twenty percent (20%) of the then outstanding number of shares of Common Stock;
provided, however
, that the provisions of
Section 2.2(g), Section 2.4 and Section 2.6 shall each survive for the period specified within such Sections and Section 2.5 and this ARTICLE IV and ARTICLE V shall survive indefinitely after the termination of this Agreement.
Section 4.5
Notices
. Notices, offers, requests or other communications required or permitted to be given by either Party pursuant to the terms of this Agreement shall be given in writing to the following addresses:
if to Dell Technologies:
Dell Technologies Inc.
One Dell Way, RR1-33
Round Rock, TX 78682
Attention: General Counsel
if to Pivotal:
Pivotal Software, Inc.
875 Howard Street, 5
th
Floor
San Francisco, CA 94103
Attention: General Counsel
Facsimile:
or to such other address as the Party to whom notice is given may have previously furnished to the other in writing as provided herein. All notices shall be sent by e-mail, facsimile or similar electronic transmission, hand delivery and recognized overnight courier, and, within the United States, may also be sent via certified mail, return receipt requested. All notices shall be deemed to have been given when received, if hand delivered
; when transmitted, if transmitted by e-mail,
22
facsimile or similar electronic transmission; one (1) Business Day after it is sent, if sent by recognized overnight courier; and three (3) Business Days after it is postmarked, if mailed first class mail or certified mail, return receipt requested, with postage prepaid.
Section 4.6
Counterparts
.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement.
Section 4.7
Binding Effect; Assignment
.
This Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective legal representatives and successors, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement. This Agreement may be enforced separately by each member of the Dell Technologies Group and each member of the Pivotal Group. Neither Party may assign this Agreement or any rights or obligations hereunder, without the prior written consent of the other Party, and any such assignment shall be void;
provided, however
, either Party may assign this Agreement to a successor entity in conjunction with such Party’s reincorporation in another jurisdiction or into another business form.
Section 4.8
Severability
.
If any term or other provision of this Agreement or any Exhibits or Schedules attached hereto is determined by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent possible.
Section 4.9
Failure or Indulgence not Waiver; Remedies Cumulative
.
No failure or delay on the part of either Party hereto in the exercise of any right hereunder shall impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor shall any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. All rights and remedies existing under this Agreement or any Exhibits or Schedules attached hereto are cumulative to, and not exclusive of, any rights or remedies otherwise available.
Section 4.10
Authority
.
Each of the Parties hereto represents to the other that (a) it has the corporate power and authority to execute, deliver and perform this Agreement, (b) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate actions, (c) it has duly and validly executed and delivered this Agreement, and (d) this Agreement is a legal, valid and binding obligation, enforceable against it in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and general equity principles.
23
Section 4.11
Interpretation
.
The headings contained in this Agreement, in any Exhibit or Schedule hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. When a reference is made in this Agreement to an Article or a Section, Exhibit or Schedule, such reference shall be to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated.
Section 4.12
Conflicting Agreements
.
None of the provisions of this Agreement are intended to supersede any provision in any Inter-Company Agreement or any other agreement with respect to the respective subject matters thereof. In the event of conflict between this Agreement and any Inter-Company Agreement or other agreement executed in connection herewith, the provisions of such Inter-Company Agreement or other agreement shall prevail.
Section 4.13
Third Party Beneficiaries
.
None of the provisions of this Agreement shall be for the benefit of or enforceable by any third party, including any creditor of either Party. No such third party shall obtain any right under any provision of this Agreement or shall by reason of any such provision make any claim in respect of any Liability (or otherwise) against either Party hereto.
Section 4.14
Consent of Dell Technologies
.
Any consent of Dell Technologies pursuant to this Agreement or any Inter-Company Agreement shall not be effective unless it is in writing and evidenced by the signature of the General Counsel of Dell Technologies (or such other person which the General Counsel has specifically authorized in writing to give such consent).
ARTICLE V
DEFINITIONS
Section 5.1
Defined Terms
.
The following capitalized terms shall have the meanings given to them in this Section 5.1:
“
Action
” means any demand, action, suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any federal, state, local, foreign or international governmental authority or any arbitration or mediation tribunal, other than any demand, action, suit, countersuit, arbitration, inquiry, proceeding or investigation relating to Taxes.
“
Administrative Services Agreement
” means the Amended and Restated Administrative Services Agreement between the Parties of even date herewith, as it may be amended from time to time.
“
Affiliate
” of any Person means any entity that controls, is controlled by, or is under common control with such Person. As used herein, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or other interests, by contract or otherwise.
24
“
Agreement
” means this Master Transaction Agreement, together with any Schedules and Exhibits attached hereto, as the same may be amended from time to time in accordance with the provisions hereof.
“
beneficially own
” has the meaning of such term defined in Rule 13d-3 under the Exchange Act.
“
Business Day
” means any day that is not a Saturday, a Sunday or a day on which commercial banking institutions in New York City or Austin, Texas are authorized or required by law to remain closed.
“
Bylaws
” has the meaning given to such term in the Certificate of Incorporation.
“
Certificate of Designation
” has the meaning given to such term in the Certificate of Incorporation.
“
Certificate of Incorporation
” means the Sixth Amended and Restated Certificate of Incorporation of Pivotal, as amended and/or restated from time to time.
“
Class A common stock
” means the Class A common stock, par value $0.01 per share, of Pivotal.
“
Class B common stock
” means the Class B common stock, par value $0.01 per share, of Pivotal.
“
Code
” means the Internal Revenue Code of 1986 (or any successor statute), as amended from time to time, and the regulations promulgated thereunder.
“
Commission
” has the meaning set forth in the recitals to this Agreement.
“
Common Stock
” means the Class A common stock and/or the Class B common stock.
“
Confidential Information
” has the meaning set forth in Section 2.4(a).
“
Contract
” means any contract, agreement, lease, license, sales order, purchase order, instrument or other commitment that is binding on any Person or any part of its property under applicable law.
“
Dell Technologies
” has the meaning set forth in the preamble to this Agreement.
“
Dell Technologies’ Auditors
” has the meaning set forth in Section 2.3(a)(i).
“
Dell Technologies Business
” means any
business that is then conducted by Dell Technologies and its Subsidiaries and described in Dell Technologies’ periodic reports filed with the Commission, other than the Pivotal Business.
“
Dell Technologies Entity
” has the meaning given to such term in the Certificate of Incorporation.
25
“
Dell Technologies Group
” means the affiliated group (within the meaning of Section 1504(a) of the Code), or similar group of entities as defined under corresponding provisions of the laws of other jurisdictions, of which Dell Technologies is the common parent corporation, and any corporation or other entity which may be, may have been or may become a member of such group from time to time, but excluding any member of the Pivotal Group.
“
Dell Technologies Indemnitees
” means Dell Technologies, each other member of the Dell Technologies Group and each of their respective directors, officers and employees.
“
Discloser
” has the meaning set forth in Section 2.4(a).
“Dispute
” has the meaning set forth in Section 2.9(a).
“
Dispute Resolution Commencement Date
” has the meaning set forth in Section 2.9(a).
“
Distribution
” has the meaning given to such term in the Certificate of Incorporation.
“
Distribution Date
” means the date on which a Distribution occurs.
“
Equity Award
” has the meaning set forth in Section 2.10(a)(iv).
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
“
Governmental Approvals
” means any notices, reports or other filings to be made, or any consents, registrations, approvals, permits or authorizations to be obtained from, any Governmental Authority.
“
Governmental Authority
” means any federal, state, local, foreign or international, court, government, department, commission, board, bureau, agency, official or other regulatory, administrative or governmental authority, or any arbitration or mediation tribunal or panel.
“Indebtedness”
means, with respect to any Person, (a)(i) any liability of such Person in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments, (ii) any liability of such Person under any agreement related to the fixing of interest rates on any Indebtedness and (iii) any capitalized lease obligations of such Person (if and to the extent the same would appear on a balance sheet of such Person prepared in accordance with United States generally accepted accounting principles), and (b) any guarantee by such Person of any liability or obligation referred to in clause (a).
“Indemnifying Party”
means any party which may be obligated to provide indemnification to an Indemnitee pursuant to Section 3.1 or Section 3.2 or any other section of this Agreement or any Inter-Company Agreement.
“Indemnitee
” means any party which may be entitled to indemnification from an Indemnifying Party pursuant to Section 3.1 or Section 3.2 or any other section of this Agreement or any Inter-Company Agreement.
26
“
Information
” means information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including, without limitation, studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memos and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data.
“
Insurance Policies
” means insurance policies pursuant to which a Person makes a true risk transfer to an insurer.
“
Insurance Proceeds
” means those monies (a) received by an insured from an insurance carrier, (b) paid by an insurance carrier on behalf of the insured, or (c) from Insurance Policies.
“
Intellectual Property Agreement
” means the Intellectual Property Agreement between Dell Technologies and Pivotal dated as of April 1, 2013, as it may be amended from time to time.
“
Inter-Company Agreements
” means the following agreements: the Administrative Services Agreement, the Intellectual Property Agreement, the International Intellectual Property Agreement and the Tax Sharing Agreement.
“
International Intellectual Property Agreement
” means the
Intellectual Property Agreement (Foreign), effective as of April 1, 2013, between Pivotal Software International (formerly GoPivotal Holdings) and EMC International Company.
“
IPO
” means the initial public offering of Class A common stock by Pivotal.
“
IPO Date
” means the date of the closing of the IPO.
“
IPO Registration Statement
” has the meaning set forth in the recitals to this Agreement.
“
Liabilities
” means all debts, liabilities, guarantees, assurances, commitments and obligations, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or however arising (including, without limitation, whether arising out of any Contract or tort based on negligence or strict liability) and whether or not the same would be required by United States generally accepted accounting principles and accounting policies to be reflected in financial statements or disclosed in the notes thereto.
“
Loss
” and “
Losses
” mean any and all damages, losses, deficiencies, Liabilities, obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses (including, without limitation, the costs and expenses of any and all actions and demands, assessments, judgments, settlements and compromises relating thereto and the costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder),
27
including direct and consequential damages, but excluding Special Damages (other than Special Damages awarded to any third party against an indemnified party).
“
Organizational Documents
” means, with respect to (a) Pivotal, the Certificate of Incorporation, Bylaws and any Certificates of Designation and (b) with respect to any other Person, the articles and/or memorandum of association, certificate of incorporation, certificate of organization, bylaws, partnership agreement, limited liability company agreement, operating agreement, certificate of formation, certificate of limited partnership and/or other organizational or
governing documents of such Person.
“
Party
” means Dell Technologies, on the one hand, or Pivotal, on the other hand, and “
Parties
” means Dell Technologies and Pivotal collectively.
“
Person
” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental entity or any department, agency or political subdivision thereof.
“
Pivotal
” has the meaning set forth in the preamble to this Agreement.
“
Pivotal’s Auditors
” has the meaning set forth in Section 2.3(a)(i).
“
Pivotal Balance Sheet
” means Pivotal’s unaudited consolidated balance sheet for the most recently completed fiscal quarter as of the IPO Date.
“
Pivotal Business
” means any
business that is then conducted by Pivotal and its Subsidiaries and described in Pivotal’s periodic reports filed with the Commission.
“
Pivotal Group
” means the affiliated group (within the meaning of Section 1504(a) of the Code), or similar group of entities as defined under corresponding provisions of the laws of other jurisdictions, of which Pivotal will be the common parent corporation immediately after the
Distribution, and any corporation or other entity which may become a
member of such group from time to time.
“
Pivotal Indemnitees
” means Pivotal, each member of the Pivotal Group and each of their respective directors, officers and employees.
“
Pivotal Liabilities
” shall mean (without duplication) the following Liabilities:
(a) all Liabilities reflected in the Pivotal Balance Sheet;
(b) all Liabilities of Dell Technologies or its Subsidiaries that arise after the date of the Pivotal Balance Sheet that would be reflected in a Pivotal balance sheet as of the
date of such Liabilities, if such balance sheet were prepared using the same principles and accounting policies under which the Pivotal Balance Sheet was prepared;
(c) all Liabilities that should have been reflected in the Pivotal Balance Sheet but are not reflected in the Pivotal Balance Sheet due to mistake or unintentional omission;
28
(d) all Liabilities (other than Liabilities for Taxes, which are governed by the Tax Sharing Agreement), whether arising before, on or after the IPO Date, that relate to, arise or result from:
(i) the operation of the Pivotal Business as conducted at any time prior to, on or after the IPO Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative thereof (whether or not such act or failure to act is or was within such Person’s authority)); or
(ii) the operation of any business conducted by any member of the Pivotal Group at any time after the IPO Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative thereof (whether or not such act or failure to act is or was within such Person’s authority));
(e) all Liabilities that are expressly contemplated by this Agreement, or any other Inter-Company Agreement (or the Schedules thereto) as Liabilities to be assumed by Pivotal or any member of the Pivotal Group; and
(f) Liabilities of any member of the Pivotal Group under this Agreement or any Inter-Company Agreement.
After the IPO Date, Dell Technologies and Pivotal may receive invoices evidencing Liabilities jointly incurred by or on behalf of both of them or their respective Affiliates. Each of Dell Technologies and Pivotal agrees that such joint liabilities shall be divided among Dell Technologies and Pivotal and their respective Affiliates consistent with past practice and “Pivotal Liabilities” shall include the portion of such liabilities so allocated to Pivotal.
“
Preferred Stock
” means preferred stock, par value $0.01 per share, of Pivotal.
“
Privileged Information
” has the meaning set forth in Section 2.5(a).
“
Privileges
” has the meaning set forth in Section 2.5(a).
“
Purpose”
has the meaning set forth in Section 2.4(b).
“
Recipient”
has the meaning set forth in Section 2.4(a).
“
Representatives
” has the meaning set forth in Section 2.4(c).
“
Rule 10A-3(b)(2)
” means Rule 10A-3(b)(2) (or any successor rule to similar effect) promulgated under the Exchange Act.
“
Sale Transaction
” means (a) any merger, consolidation, business combination or amalgamation of Pivotal or any of its Subsidiaries with or into any Person, or (b) the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of Pivotal’s and its Subsidiaries’ assets (determined on a consolidated basis based on value) (including by means of merger, consolidation, other business combination, exclusive license, share exchange or other
29
reorganization);
provided
,
however,
that in each case, any transaction solely between and among Pivotal and/or Wholly-Owned Subsidiaries shall not be considered a Sale Transaction hereunder.
“
Securities Act
” means the Securities Act of 1933, as amended.
“
Special Damages
” means any special, indirect, incidental, punitive, exemplary, remote, speculative, consequential or similar damages whatsoever, including damages for lost profits or lost business opportunities or damages calculated based upon a multiple of earnings approach or variant thereof.
“
Stock
” means shares of capital stock (whether denominated as common stock or preferred stock), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or business trust, whether voting or non-voting.
“
Stock Equivalents
” means all securities convertible into or exchangeable or exercisable for Stock (including convertible debt) and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable, and all voting debt. For the avoidance of doubt, all Equity Awards shall be deemed to be Stock Equivalents for the purposes of this Agreement.
“
Stock Exchange
” means the principal U.S. stock exchange on which the Class A common stock is listed for trading.
“
Subsidiary
” of any Person means a corporation, limited liability company, joint venture, partnership, trust, association or other entity in which such Person: (a) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such entity, (ii) the total combined equity interests, or (iii) the capital or profits interest, in the case of a partnership; or (b) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body of such entity.
“
Tax
” and “
Taxes
” have the meanings set forth in the Tax Sharing Agreement.
“
Tax Sharing Agreement
” means the Tax Sharing Agreement by and among Dell Technologies, EMC Corporation, Pivotal and other parties thereto, dated February 8, 2017, as it may be amended from time to time.
“
third party
” has the meaning set forth in Section 2.3(i).
“
Third Party Claim
” has the meaning set forth in Section 3.6(a).
“
Total Voting Power
” has the meaning
given to such term in the
Certificate of Incorporation.
“
Wholly-Owned Subsidiary
” means each Subsidiary of Pivotal in which Pivotal owns (directly or indirectly) all of the outstanding voting Stock, voting power, partnership interests or similar ownership interests, except for director’s qualifying shares in a nominal amount.
30
WHEREFORE
, the Parties have signed this Master Transaction Agreement effective as of the date first set forth above.
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DELL TECHNOLOGIES INC.
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Name:
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Title:
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PIVOTAL SOFTWARE, INC.
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Name:
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Title:
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[
Signature Page to Master Transaction Agreement
]
Exhibit 10.11
SHARED SERVICES AGREEMENT
dated as of April
, 2018
between
PIVOTAL SOFTWARE, INC.,
and
DELL INC.
TABLE OF CONTENTS
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PAGE
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ARTICLE I
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DEFINITIONS
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Section 1.01 Definitions
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1
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ARTICLE II
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PURCHASE AND SALE OF SERVICES
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Section 2.01 Purchase and Sale of Dell Services
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3
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Section 2.02 Purchase and Sale of Company Services
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4
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Section 2.03 Additional Services
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4
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Section 2.04 Transition
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4
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Section 2.05 Cooperation
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5
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Section 2.06 Modifications
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5
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ARTICLE III
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SERVICE COSTS; OTHER CHARGES
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Section 3.01 Service Costs
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6
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Section 3.02 Payment
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7
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Section 3.03 Financial Responsibility for Parties’ Personnel
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8
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ARTICLE IV
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STANDARD OF PERFORMANCE AND INDEMNIFICATION
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Section 4.01 General Standard of Service
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8
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Section 4.02 Services Management
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8
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Section 4.03 Indemnification
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8
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ARTICLE V
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TERM AND TERMINATION
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Section 5.01 Term
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9
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Section 5.02 Termination
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9
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Section 5.03 Effect of Termination
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9
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ARTICLE VI
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MISCELLANEOUS
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Section 6.01 Ownership
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10
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Section 6.02 No Agency
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10
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Section 6.03 Subcontractors
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10
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Section 6.04 Force Majeure
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10
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Section 6.05 Entire Agreement
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11
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i
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Section 6.06 Notices
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11
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Section 6.07 Governing Law
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12
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Section 6.08 Consent to Jurisdiction
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12
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Section 6.09 Severability
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12
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Section 6.10 Third Party Beneficiary
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13
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Section 6.11 Amendment
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13
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Section 6.12 Counterparts
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13
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Section 6.13 Binding Effect; Assignment
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13
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Section 6.14 Authority
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13
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Section 6.15 Limitation of Liability
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13
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Section 6.16 Interpretation
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SCHEDULES
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SCHEDULE I:
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Certain Services To Be Provided By Pivotal Software, Inc. to Dell Inc.
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SCHEDULE II:
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Certain Services To Be Provided By Dell Inc. to Pivotal Software, Inc.
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ii
SHARED SERVICES AGREEMENT
THIS SHARED SERVICES AGREEMENT (this “
Agreement
”) is dated as of April , 2018 by and between Pivotal Software, Inc., a Delaware corporation (the “
Company
”), and Dell Inc., a Delaware corporation (“
Dell
”). The Company and Dell are sometimes referred to herein separately as a “
Party
” and together as the “
Parties
”. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in
Section 1.01
.
W I T N E S S E T H:
WHEREAS
, the Company, EMC Corporation, a Massachusetts corporation (“
EMC
”), and VMware, Inc., a Delaware corporation (“
VMware
”), previously entered into a Transition Services Agreement, dated as of April 1, 2013 (the “
TSA
”), to provide certain transition services and make certain limited facilities available to the Company for a limited period of time in order to ensure the orderly transition and continued servicing of assets contributed by EMC and VMware and assumed liabilities in connection with the formation of the Company;
WHEREAS,
Dell acquired EMC effective September 7, 2016;
WHEREAS
, the Company, EMC and VMware have contemporaneously terminated the TSA as of the date hereof, and the Company and Dell desire to supersede the TSA by entering into this Agreement to provide for services continuing as of the date hereof between the Company and Dell, while the Company and VMware may contract for any services between them in a separate agreement; and
WHEREAS
, each Party desires to set forth in this Agreement the principal terms and conditions of the provision of such services;
NOW, THEREFORE
, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, for themselves and their respective successors and assigns, hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01
Definitions.
For purposes of this Agreement, the following terms, when used herein, shall have the meanings specified or referred to in this
Section 1.01
:
“
Additional Services
” has the meaning set forth in
Section 2.03
.
“Change of Control” means the occurrence of any one or more of the following events:
i.
the sale or disposition, in one or a series of related transactions, of all or substantially all of the consolidated assets of the Company and the Company
1
Subsidiaries, taken as a whole, to any person” or “group” (as such terms are used for purposes of Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) other than Denali Holding Inc. or any of its direct or indirect wholly-owned Subsidiaries;
ii.
any “person” or “group,” other than Denali Holding Inc. or any of its direct or indirect wholly-owned Subsidiaries, is or becomes the beneficial owner, directly or indirectly, of more than fifty percent (50%) of the total voting power of the outstanding voting stock of the Company, excluding as a result of any merger or consolidation that does not constitute a Change of Control pursuant to clause (iii); or
iii.
any merger or consolidation of the Company with or into any other person, unless immediately thereafter Denali Holding Inc. or any of its direct or indirect wholly-owned Subsidiaries beneficially owns a majority of the outstanding shares of the common stock (or equivalent voting securities) of the surviving or successor entity (or the parent entity thereof).
“
Company Employee
” means a Company employee or Subcontractor listed on
Schedule I
that will be engaged in providing Company Services.
“
Company Entities
” means the Company and its Subsidiaries, including any entity which becomes a Subsidiary of the Company after the date hereof.
“
Company Indemnified Person
” means each Company Entity and each of their respective directors, officers and employees.
“Company Services
” means the various services that the Company shall provide (or cause to be provided) to Dell, which services are listed in
Schedule I
.
“
Dell Employee
” means a Dell employee or Subcontractor listed on
Schedule II
that will be engaged in providing Dell Services.
“
Dell Entities
” means Dell and its Subsidiaries, including any entity which becomes a Subsidiary of Dell after the date hereof (excluding Company, VMware, Inc., Secureworks, Boomi, RSA and Virtustream).
“
Dell Indemnified Person
” means each Dell Entity and each of their respective directors, officers and employees.
“
Dell Services
” means the services that Dell shall provide (or cause to be provided) to the Company, which services are listed in
Schedule II
.
“
Force Majeure
” has the meaning set forth in
Section 6.04
.
2
“
Liability
” means, with respect to any Person, any liability, commitment or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, asserted or unasserted, accrued or unaccrued, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, absolute, contingent, executory, determined, determinable or otherwise and whether or not the same is required to be accrued on the financial statements of such Person.
“
Losses
” means any and all damages, losses, deficiencies, Liabilities, obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses (including the costs and expenses of any and all actions and demands, assessments, judgments and settlements and compromises relating thereto and the reasonable costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder), excluding special, consequential, indirect and punitive damages (other than special, consequential, indirect and/or punitive damages awarded to any third party against an indemnitee).
“
Out-of-Pocket Costs
” has the meaning set forth in
Section 3.01(c)
.
“
Person
” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization or a governmental body or authority.
“
Services
” means the Company Services and the Dell Services.
“
Services Manager
” has the meaning set forth in
Section 4.02
.
“
Subcontractor
” has the meaning set forth in
Section 6.03
.
“
Subsidiary
” of any Person means a corporation, limited liability company, joint venture, partnership, trust, association or other entity in which such Person: (i) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (A) the total combined voting power of all classes of voting securities of such entity, (B) the total combined equity interests, or (C) the capital or profits interest, in the case of a partnership; or (ii) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body. For purposes of this Agreement, the Company and its Subsidiaries shall not be deemed to be Subsidiaries of any Dell Entity.
“
Termination Date
” has the meaning set forth in
Section 5.03
.
ARTICLE II
PURCHASE AND SALE OF SERVICES
Section 2.01
Purchase and Sale of Dell Services.
(a) Subject to the terms and conditions of this Agreement and in
3
consideration of the costs for Dell Services described below, Dell agrees to provide or cause to be provided to the Company Entities, and the Company agrees to purchase, or to cause the Company Entities to purchase, from the Dell Entities, the Dell Services, until such Dell Services are terminated in accordance with the provisions hereof.
(b) Each Party acknowledges and agrees that (i) the Dell Services to be provided, or caused to be provided, by Dell under this Agreement shall, at the Company’s request, be provided directly to the Company or a Subsidiary of the Company and (ii) Dell may satisfy its obligation to provide or to procure the applicable Dell Services hereunder by causing one or more of its Subsidiaries to provide or to procure such Services. With respect to the Dell Services provided to, or procured on behalf of, any Subsidiary of the Company, the Company agrees to pay on behalf of such Subsidiary all amounts payable by or in respect of such Dell Services pursuant to this Agreement, if any amounts payable are not otherwise paid by such Subsidiary.
Section 2.02
Purchase and Sale of Company Services.
(a) Subject to the terms and conditions of this Agreement and in consideration of the costs for Company Services described below, the Company agrees to provide or cause to be provided to the Dell Entities, and Dell agrees to purchase, or to cause the Dell Entities to purchase, from the Company Entities, the Company Services, until such Company Services are terminated in accordance with the provisions hereof.
(b) Each Party acknowledges and agrees that (i) the Company Services to be provided, or caused to be provided, by the Company Entities under this Agreement to Dell shall, at such Dell’s request, be provided directly to a Dell Entity and (ii) the Company may satisfy its obligation to provide or to procure the applicable Company Services hereunder by causing one or more of its Subsidiaries to provide or to procure such Services. Dell agrees that, with respect to the Company Services provided to, or procured on behalf of, a Dell entity, Dell shall pay on behalf of such Dell Entity all amounts payable by or in respect of such Company Services pursuant to this Agreement, if any amounts payable are not otherwise paid by such Dell Entity.
Section 2.03
Additional Services.
In addition to the Services to be provided or procured pursuant to, and in accordance with,
Section 2.01
or
Section 2.02
, if requested by the Party receiving such Services, and to the extent that the Party providing such Services may agree in writing, the Party providing such Services shall provide additional services to such other Party (“
Additional Services
”). The scope of any such Services, as well as the costs and other terms and conditions applicable to such Services, shall be as mutually agreed by such Parties prior to the provision of such Additional Services.
Section 2.04
Transition.
Each Party receiving a Service agrees to use commercially reasonable efforts to cooperate with the Party providing the Service in providing for an orderly transition of such Service to the Party receiving the Service or to a successor service provider as designated by the Party receiving the Service.
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Section 2.05
Cooperation.
To the extent reasonably necessary to perform the Services, a Party receiving Services shall provide personnel of the other Party, its Subsidiaries and its Subcontractors with reasonable access during normal business hours to the receiving Party’s office space, telecommunications and computer equipment and systems, and other areas and equipment. The Party providing Services will comply, and shall instruct its Subsidiaries and Subcontractors to comply, with any reasonable security and access restrictions and other procedures that are communicated to such Party in writing and applicable to such access. The receiving Party shall (a) comply with any reasonable instructions of the Party providing Services that are reasonably necessary for it to adequately provide the Services; (b) comply with all standards and procedures applicable to such Services (if any) which are generally applied by such Party in the provision of services similar to such Services to itself and its Subsidiaries and which are communicated to the receiving Party in writing; and (c) promptly notify the Party providing Services of any operational or system problem which may affect the provision of any Services. To the extent the receiving Party fails to adhere to this
Section 2.05
, the Party providing Services shall be excused from its performance of the Services hereunder to the extent such failure materially increases its cost or burden to provide such Services, or where such failure prevents its provision of the Service in conformance with this Agreement; provided that the Party providing Services shall first notify the receiving Party of such failure in writing and, where applicable, allow the receiving Party a reasonable opportunity (not to exceed thirty (30) days) to cure such failure.
Section 2.06
Modifications.
(a) Dell may make changes from time to time in its standards and procedures for performing the Dell Services, provided that any such change shall also apply to Dell’s own business. Dell shall use commercially reasonable efforts to provide the Company with a minimum of ninety (90) days’ prior written notice of any planned changes that Dell anticipates, or reasonably should know, will have a material impact on the continued operation of the Company’s business. Upon receipt of such notice, the Company shall have the right to (i) request a meeting with Dell to discuss whether the change can be postponed and Dell shall, in good faith, consider any such request, or (ii) terminate the impacted Dell Service in accordance with
Section 5.02
.
(b) The Company shall provide Dell with a minimum of ninety (90) days’ prior written notice of any planned changes to the Company’s business or information technology infrastructure or systems that may affect the provision of the Services hereunder. To the extent any such planned change will increase the level or costs of Services in any material manner, Dell shall have the right to (i) request a meeting with the Company to discuss whether the change can be postponed until after the conclusion of the applicable Service term and the Company shall, in good faith, consider any such request, or (ii) terminate the provision of the impacted Service by providing written notice of such termination to the Company.
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ARTICLE III
SERVICE COSTS; OTHER CHARGES
Section 3.01
Service Costs.
(a) Each Company Service shall be provided at the price per Company Employee indicated on
Schedule I
or as otherwise provided in the Schedule. The price per Company Employee providing such Service shall be calculated as a percentage of the fully-burdened cost for each such Company Employee. In the event of a material change in the level of service for any Service prior to the expiration of the term set forth on
Schedule I
, Dell and the Company shall work together in good faith to recalculate the price for such Service and amend
Schedule I
, as appropriate. For purposes of this Agreement, “
fully-burdened cost
” means the total cost of employment to a Party with respect to such Party’s employee, including such individual’s salary, bonus, equity and other compensation and employment-related insurance, benefits and taxes.
(b) Each Dell Service shall be provided at the price per Dell Employee (or other formula for deriving such fee or price) indicated in
Schedule II
. The price per Dell Employee providing such Service shall be calculated as a percentage of the fully-burdened cost for each such Dell Employee. In the event of a material change in the level of service for any Service prior to the expiration of the term set forth on
Schedule II
, Dell and the Company shall work together in good faith to recalculate the price for such Service and amend
Schedule II
, as appropriate.
(c) In addition to the amounts pursuant to
Section 3.01(a)
or
(b)
, in the event that a Party providing Services incurs reasonable and documented out-of-pocket expenses in the provision of any Service, including license fees and payments to third party service providers or subcontractors, but excluding payments made to employees of such Party pursuant to
Section 3.01(a)
or
(b)
(such included expenses, collectively, “
Out-of-Pocket Costs
”), the Party receiving such Service shall reimburse the Party providing such Service for all such Out-of-Pocket Costs in accordance with the invoicing procedures set forth in
Section 3.02
.
(d) Each Party agrees that no Party shall be obligated to perform any Service after the applicable Termination Date;
provided,
that if the Party receiving a Service and the Party providing the Service desire to continue such Services after the applicable Termination Date, such Parties shall negotiate in good faith to determine an amount that compensates the Party providing such Service for all of its costs for such performance. The Services so performed by a Party after the applicable Termination Date shall continue to constitute Services under this Agreement and be subject in all respects to the provisions of this Agreement for the duration of the agreed-upon extension period.
(e) Any Additional Services provided by a Party shall be provided at rates mutually agreed to by the Parties in writing.
(f) The consideration payable by a Party receiving Services hereunder
6
shall include an arm’s length markup as required by applicable tax laws and shall exclude any and all taxes imposed on the sale of the applicable Services (or other goods and services sold to the Party receiving Services), and any and all taxes otherwise imposed on, sustained or incurred with respect to, or applicable to, the applicable Services (or other goods and services sold to the Party receiving Services);
provided
that the Party receiving Services shall bear any and all sales, use and other similar taxes imposed on the sale to it of the applicable Services (or other goods and services sold to such Party). Each Party that provides Services hereunder shall properly and timely collect from each Party receiving Services hereunder and remit any such sales, use and other similar taxes if required to do so by applicable law.
(g) Each Party shall cooperate with each other Party and take any reasonably requested action which does not cause such first Party to incur any cost or inconvenience (other than
de minimis
costs or inconveniences) in order to minimize any sales, use or other similar taxes imposed on the sale of the Services (or other goods and services sold pursuant to this Agreement), including providing sales and use tax exemption certificates or other documentation necessary to support tax exemptions. Each Party agrees to provide each other Party such information and data as reasonably requested from time to time, and to fully cooperate with each other Party, in connection with (i) the reporting of any sales, use or other similar taxes payable pursuant to this Agreement, (ii) any audit relating to any sales, use or other similar taxes payable pursuant to this Agreement or (iii) any assessment, refund, claim or proceeding relating to any such sales, use or other similar taxes.
Section 3.02
Payment.
(a) Unless otherwise set forth on a Schedule (or otherwise mutually agreed to by the Parties in writing), charges for Services shall be invoiced quarterly in arrears by each Party providing such Services within five (5) business days prior to end of a quarter. The invoice shall set forth in reasonable detail for the period covered by such invoice (i) the Services rendered and (ii) the aggregate amount charged for each type of Service provided. Each invoice shall be directed to the appropriate Services Manager of the Party to receive the invoice or such other individual designated in writing from time to time by such Services Manager. Unless otherwise agreed in writing between the Party providing the invoice and the Party receiving the invoice, all payments made pursuant an invoice shall be made in U.S. dollars. The Parties shall provide documentation supporting any amounts invoiced pursuant to this
Section 3.02
as the Party receiving the invoice may from time to time reasonably request including within 10 business days prior to the end of a quarter.
(b) All charges should be settled within sixty (60) days after the end of the last fiscal quarter in which such charges were incurred by a Party,
provided
that if such Party, in good faith, disputes any invoiced charge, payment of such charge may be made only after mutual resolution of such dispute. Each Party agrees to notify the Party sending the invoice promptly, and in no event later than thirty (30) days following receipt of an invoice, of any disputed charge listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed shall be deemed accepted and shall be paid, notwithstanding disputes on other items, within the period set forth in
Section 3.02(a)
. The
7
applicable Parties shall seek to resolve all such disputes expeditiously and in good faith.
(c) Each Party hereby acknowledges and agrees that it shall have no right under this Agreement to offset any amounts owed (or to become due and owing) to another Party, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by the other Party.
Section 3.03
Financial Responsibility for Parties’ Personnel.
Each Party shall pay for all personnel and other related expenses, including salary or wages, of its employees performing the applicable Services. No individual providing Dell Services to a Company Entity pursuant to the terms of this Agreement shall be deemed to be, or shall have any rights as, an employee of any such Company Entity, and no individual providing Company Services to an Dell Entity pursuant to the terms of this Agreement shall be deemed to be, or shall have any rights as, an employee of such Dell Entity.
ARTICLE IV
STANDARD OF PERFORMANCE AND INDEMNIFICATION
Section 4.01
General Standard of Service.
Except as otherwise agreed to in writing by the Parties or as described in this Agreement:
(a) The Company agrees that the nature, quality, degree of skill and standard of care applicable to the delivery of the Company Services hereunder, and the skill levels of the employees providing such Services, shall be substantially the same as or consistent with those similar Dell Entities exercised or employed in providing similar services provided within or to any other Dell Entities;
(b) Dell agrees that the nature, quality, degree of skill and standard of care applicable to the delivery of the Dell Services hereunder, and the skill levels of the employees providing such Dell Services, shall be substantially the same as or consistent with those any Dell Entity exercises or employs in providing similar services provided within or to any other Dell Entity; and
Section 4.02
Services Management.
Each Party agrees to appoint one or more of its employees for each specific Service it provides who will have overall responsibility for managing and coordinating the delivery of such Service, including making available the services of appropriately qualified employees and resources to enable the provision of the Services (each, a “
Services Manager
”). The Services Managers shall consult and coordinate with each other regarding the provision of Services.
Section 4.03
Indemnification.
(a) The Company agrees to indemnify and hold harmless each Dell Indemnified Person from and against any Losses arising out of or related to the gross negligence or willful misconduct of the Company or any of its Subsidiaries or any third party that provides a
8
Company Service to a Dell Entity pursuant to this Agreement in connection with the performance of this Agreement or with the provision of, or failure to provide, any such Services to such Dell Entity;
provided,
that the Company shall not be responsible for any Losses incurred by any Dell Indemnified Person that have resulted from such Dell Indemnified Person’s gross negligence or willful misconduct in connection with any of the Company Services.
(b) Dell agrees to indemnify and hold harmless each Company Indemnified Person from and against any Losses arising out of or related to the gross negligence or willful misconduct of Dell or any of its Subsidiaries or any third party that provides a Dell Service to a Company Entity pursuant to this Agreement in connection with the performance of this Agreement or with the provision of, or failure to provide, any such Services to such Company Entity;
provided,
that Dell shall not be responsible for any Losses incurred by any Company Indemnified Person that have resulted from such Company Indemnified Person’s gross negligence or willful misconduct in connection with any of the Dell Services.
ARTICLE V
TERM AND TERMINATION
Section 5.01
Term
. Except as otherwise provided in this
Article V
or as otherwise agreed in writing by the Parties, the Parties’ obligations to provide, to procure or to purchase a Service shall cease as of the applicable date set forth in
Schedule I
or
Schedule II
or the applicable date set forth in any arrangement by and among the applicable Parties pursuant to which Additional Services are provided (in each case as such dates may be extended with the consent of the Party providing a Service and the Party receiving a Service) or such earlier date determined in accordance with
Section 5.02
.
Section 5.02
Termination.
(a) The Party providing a Service and the Party receiving a Service hereunder may by mutual agreement from time to time terminate this Agreement with respect to such Service, in whole or in part.
(b) The Company may terminate any Dell Service at any time upon at least thirty (30) days prior written notice of such termination to Dell, effective as of such 30th day. Dell may terminate any Company Service provided to Dell at any time upon at least thirty (30) days prior written notice of such termination to the Company, effective as of such 30th day.
(c) A Party may terminate a Service provided by such Party upon written notice in the event of the receiving Party’s material breach of this Agreement, which breach remains uncured thirty (30) days after the breaching Party’s receipt of written notice thereof.
(d) This Agreement shall terminate automatically in the event of a Change of Control of the Company.
Section 5.03
Effect of Termination.
Other than as required by law, upon the
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effective date of the termination of any Service pursuant to
Section 5.01
or
Section 5.02
, or upon termination of this Agreement in accordance with its terms (any such date, the “
Termination Date
”), the Parties shall have no further obligation to provide the terminated Service (or any Service, in the case of termination of this Agreement) and shall have no obligation to pay any fees relating to such terminated Services or to make any other payments hereunder;
provided,
that notwithstanding such termination, (i) each Party shall remain liable for fees owed and payable in respect of Services provided to it prior to the effective date of the termination; (ii) the Parties shall continue to charge for administrative and program costs relating to benefits paid after but incurred prior to the termination of any Service, and the Party so charged shall be obligated to pay such expenses in accordance with the terms of this Agreement,
provided
that (A) the Party that provided the Service makes reasonable efforts to obtain available refunds of such costs and (B) if such Party shall obtain a refund of any such costs already paid by the Party that received the Service, the Party that provided the Service shall return such portion of the costs to the Party that received the Service; and (iii) the provisions of
Articles IV
,
V
, and
VI
and
Section 3.01(f)
and
(g)
shall survive any such termination indefinitely.
ARTICLE VI
MISCELLANEOUS
Section 6.01
Ownership.
This Agreement and the performance of the Services hereunder will not affect the ownership of any assets or responsibility for any liabilities. No Party will gain, by virtue of this Agreement or the Services provided hereunder, by implication or otherwise, any rights of ownership of any property or intellectual property rights owned by the other Parties or their respective Subsidiaries.
Section 6.02
No Agency.
Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture by and among the Parties hereto or constitute or be deemed to constitute any Party the agent or employee of the other Party for any purpose whatsoever, and no Party shall have authority or power to bind any other Party or to contract in the name of, or create a liability against, any other Party in any way or for any purpose.
Section 6.03
Subcontractors.
Each Party may hire or engage one or more third party subcontractors (each, a “
Subcontractor
”) to perform all or any of the Services to be provided (or caused to be provided) by it under this Agreement;
provided,
that, subject to
Section 4.03
, such Party shall pay for all fees due each such Subcontractor and shall in all cases remain primarily responsible for all obligations undertaken by each such Subcontractor on its behalf pursuant to the terms of this Agreement with respect to the scope, quality, degree of skill and nature of the Services provided by it hereunder.
Section 6.04
Force Majeure.
(a) For purposes of this
Section 6.04
, “
Force Majeure
” means an event beyond the control of any Party, which by its nature could not have been foreseen by such Party, or, if it could have been foreseen, was unavoidable, and includes without limitation, acts of God,
10
storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) and failure of energy sources.
(b)
Continued performance of a Service may be suspended immediately to the extent caused by Force Majeure. The Party claiming suspension of a Service due to Force Majeure will give prompt notice to the other of the occurrence of the event giving rise to the suspension and of its nature and anticipated duration. The Parties shall cooperate with each other to find alternative means and methods for the provision of the suspended Service.
(c)
No Party shall be under any liability for failure to fulfill any obligation under this Agreement, so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered, or delayed as a consequence of circumstances of Force Majeure.
Section 6.05
Entire Agreement.
This Agreement (including the Schedules constituting a part of this Agreement) and any other writing signed by the Parties that specifically references or is specifically related to this Agreement constitute the entire agreement among the Parties with respect to the subject matter hereof and supersede all prior agreements, understandings and negotiations, both written and oral, by and among the Parties with respect to the subject matter hereof.
Section 6.06
Notices.
Notices, offers, requests or other communications required or permitted to be given by any Party pursuant to the terms of this Agreement shall be given in writing to the respective Parties to the following addresses:
(a)
If to Dell, to:
Dell Inc.
One Dell Way, RR1-33
Round Rock, Texas 78682
Attention:
(b)
If to the Company, to:
Pivotal Software, Inc.
875 Howard Street-Fifth Floor
San Francisco, CA 94103
Attention:
or to such other address as the Party to whom notice is given may have previously furnished to the other in writing as provided herein. Any notice involving nonperformance, termination, or
11
renewal shall be sent by hand delivery, recognized overnight courier or, within the United States, may also be sent via certified mail, return receipt requested. All notices shall be deemed to have been given when received, if hand delivered; when transmitted, if transmitted by electronic transmission method; one working day after it is sent, if sent by recognized overnight courier; and three days after it is postmarked, if mailed first class mail or certified mail, return receipt requested, with postage prepaid.
Section 6.07
Governing Law.
This Agreement, including the validity hereof and the rights and obligations of the Parties hereunder, shall be construed in accordance with, and all disputes, controversy or claims arising out of or relating to this Agreement shall be governed by, the laws of the State of Texas applicable to contracts made and to be performed entirely in such State (without giving effect to the conflicts of law provisions thereof that would cause the application of the laws of any jurisdiction other than the State of Texas).
Section 6.08
Consent to Jurisdiction.
Each of the Parties irrevocably and unconditionally agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by another Party hereto or its successors or assigns, shall be brought and determined exclusively in the federal and state courts sitting in Austin, Texas. Each of the Parties hereby irrevocably submits, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts. Each of the Parties hereby irrevocably waives, and agrees not to assert as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason, (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by the applicable law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
Section 6.09
Severability.
If any terms or other provision of this Agreement or the Schedules or exhibits hereto shall be determined by a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the fullest extent permitted under applicable law.
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Section 6.10
Third Party Beneficiary.
None of the provisions of this Agreement shall be for the benefit of or enforceable by any third party, including any creditor of any Person. No such third party shall obtain any right under any provision of this Agreement or shall by reasons of any such provision make any claim in respect of any Liability (or otherwise) against any Party hereto.
Section 6.11
Amendment.
This Agreement may not be amended except by mutual consent of the Parties, evidenced by an instrument in writing signed on behalf of each Party.
Section 6.12
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which shall constitute one and the same agreement. If any signature is delivered by facsimile transmission or by PDF, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf the signature is executed) with the same force and effect as if such facsimile or PDF signature were an original thereof.
Section 6.13
Binding Effect; Assignment.
This Agreement shall inure to the benefit of and be binding upon the Parties and their respective legal representatives and successors. Neither Party may assign this Agreement or any rights or obligations hereunder, except for any assignment by such Party to a Subsidiary of such Party (which shall not relieve such Party of liability in the event of a default by such Subsidiary), without the prior written consent of the other Party, and any such assignment without consent shall be void.
Section 6.14
Authority.
Each of the Parties hereto represents to the other that (a) it has the corporate or other requisite power and authority to execute, deliver and perform this Agreement, (b) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary corporate or other actions, (c) it has duly and validly executed and delivered this Agreement, and (d) this Agreement is a legal, valid and binding obligation, enforceable against it in accordance with its terms subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and general equity principles.
Section 6.15
Limitation of Liability.
IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
PROVIDED,
THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH PARTY’S INDEMNIFICATION OBLIGATIONS FOR LIABILITIES AS SET FORTH IN THIS AGREEMENT. FURTHER, THE LIABILITY OF A PARTY ARISING OUT OF ANY CLAIM RELATING TO THIS AGREEMENT (INCLUDING TORT CLAIMS) SHALL NOT EXCEED THE AMOUNT PAID TO SUCH PARTY FOR THE SERVICE(S) RELATING TO SUCH CLAIM IN THE TWELVE (12) MONTH PERIOD PRIOR TO WHEN SUCH CLAIM AROSE.
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Section 6.16
Interpretation.
The headings contained in this Agreement, in any Exhibit or Schedule hereto and in the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized term used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning assigned to such term in this Agreement. When a reference is made in this Agreement to an Article or a Section, Exhibit or Schedule, such reference shall be to an Article or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The Parties have participated jointly in the negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by such Parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “hereby,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any law defined or referred to herein or in any agreement or instrument that is referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
[Remainder of Page Intentionally Left Blank; Signature Page(s) Follow]
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IN WITNESS WHEREOF,
the undersigned have duly executed this Agreement, or have caused this Agreement to be duly executed on their behalf, as of the day and year first hereinabove set forth.
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PIVOTAL SOFTWARE, INC.
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DELL INC.
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Signature Page to Shared Services Agreement
