UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): August 26, 2020
FORTRESS VALUE ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
Delaware | 001-39277 | 84-4465489 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
1345 Avenue of the Americas, 46th Floor New York, New York 10105 |
(Address of principal executive offices, including zip code) |
Registrant’s telephone number, including area code: (212) 798-6100
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class |
Trading Symbols |
Name of Each Exchange on Which Registered |
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Units, each consisting of one share of Class A common stock and one-third of one redeemable warrant | FVAC.U | New York Stock Exchange | ||
Class A common stock, par value of $0.0001 per share | FVAC | New York Stock Exchange | ||
Redeemable warrants, each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share | FVAC WS | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01 |
Entry into a Material Definitive Agreement. |
Amendment to Merger Agreement
On August 26, 2020, Fortress Value Acquisition Corp., a Delaware corporation (“Parent”), entered into an amendment (the “Amendment”) to that certain Agreement and Plan of Merger (the “Merger Agreement”), by and among Parent, FVAC Merger Corp. I, a Delaware corporation and a direct, wholly-owned subsidiary of Parent, FVAC Merger LLC II, a Delaware limited liability company that is treated as a corporation for U.S. federal income tax purposes and a direct, wholly-owned subsidiary of Parent, FVAC Merger LLC III, a Delaware limited liability company and a direct wholly-owned subsidiary of Parent, FVAC Merger LLC IV, a Delaware limited liability company and a direct wholly-owned subsidiary of Parent, MP Mine Operations LLC, a Delaware limited liability company (“MPMO”) and Secure Natural Resources LLC, a Delaware limited liability company (“SNR” and, together with MPMO, each a “Company” and collectively, the “Companies”). As previously disclosed, the Merger Agreement provides for a business combination transaction (the “Business Combination”), pursuant to which the Companies will, through a series of related transactions, become indirect wholly-owned subsidiaries of Parent following the consummation of the Business Combination. Capitalized terms used, but not defined herein, shall have the meanings given to such terms in the Merger Agreement.
Pursuant to the Amendment, the Parties agreed that Parent will waive the obligation of the Companies, set forth in Section 7.1(a) of the Merger Agreement, to deliver to Parent the Title Opinion and the Survey prior to the initial filing, in preliminary form, of the S-4 Registration Statement / Proxy Statement.
The Parties also agreed modify the conditions under which Earnout Shares will be issued in the event Parent enters into a binding agreement with respect to a Parent Sale prior to the date that is ten (10) years following the Closing Date, such that only if the consideration paid for each share of Parent Stock in such Parent Sale is equal to or in excess of the respective Earnout Share targets set forth in the Merger Agreement will such Earnout Shares be issued effective as of one day prior to the consummation of the Parent Sale. To the extent the per share value of consideration paid for each share of Parent Stock in such Parent Sale includes contingent consideration or property other than cash, the Parent Board shall determine, in good faith, the per share value of consideration paid for each share of Parent Stock in such Parent Sale and any equitable adjustment required in respect of any unissued Earnout Shares.
A copy of the Amendment is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference, and the foregoing description of the Amendment is qualified in its entirety by reference thereto.
Restated Parent Sponsor Letter Agreement
On August 26, 2020, Parent, Fortress Acquisition Sponsor LLC (the “Sponsor”) and certain other individuals, each of whom is a member of Parent’s board of directors and/or management team (each, an “Insider” and collectively, the “Insiders”), entered into a Second Amended and Restated Sponsor Letter Agreement (the “Second Amended and Restated Sponsor Letter Agreement”), which Second Amended and Restated Sponsor Letter Agreement amended and restated that certain Parent Sponsor Letter Agreement, dated as of July 15, 2020, entered into in connection with that certain Merger Agreement.
Pursuant to the Second Amended and Restated Sponsor Letter Agreement, the parties agreed to amend the vesting terms of the Vesting Shares in the event Parent enters into a binding agreement with respect to a “Parent Sale” (as defined in the Parent Sponsor Letter Agreement) prior to the date that is ten (10) years following the Closing Date,
such that only if the consideration paid for each share of Parent Stock (as defined in the Parent Sponsor Letter Agreement) in such Parent Sale is equal to or in excess of the respective vesting targets set forth in the Parent Sponsor Letter Agreement will such Vesting Shares that remain unvested at the time of such Parent Sale, if any, vest effective as of one day prior to the consummation of the Parent Sale. To the extent the consideration paid for each share of Parent Stock in such Parent Sale includes contingent consideration or property other than cash, Parent’s board of directors shall determine, in good faith, the value of the purchase consideration paid for each share of Parent Stock in such Parent Sale and any equitable adjustment required in respect of any unvested Vesting Shares.
A copy of the Second Amended and Restated Sponsor Letter Agreement is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference, and the foregoing description of the Second Amended and Restated Sponsor Letter Agreement is qualified in its entirety by reference thereto.
Forward-Looking Statements
Certain statements included in this Current Report on Form 8-K that are not historical facts are forward-looking statements for purposes of the safe harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of the words such as “ estimate,” “plan,” “project,” “forecast,” “intend,” “expect,” “anticipate,” “believe,” “seek,” “target,” or similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding estimates and forecasts of other financial and performance metrics and projections of market opportunity. These statements are based on various assumptions, whether or not identified in this Current Report on Form 8-K, and on the current expectations of the Companies’ and Parent’s management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of the Companies and Parent. These forward-looking statements are subject to a number of risks and uncertainties, including changes in domestic and foreign business, market, financial, political and legal conditions; the inability of the parties to successfully or timely consummate the transaction; the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the transaction; the risk that the approvals of the unitholders of the Companies and the stockholders of Parent are not obtained; the risk that any of the conditions to closing are not satisfied in the anticipated manner or on the anticipated timeline; failure to realize the anticipated benefits of the transaction; risks relating to the uncertainty of the projected financial information with respect to the Companies; risks related to the rollout of the Companies’ business strategy and the timing of expected business milestones; risks related to the Companies’ arrangements with Shenghe; the effects of competition on the Companies’ future business; risks related to political and macroeconomic uncertainty; the amount of redemption requests made by Parent’s public stockholders; the ability of Parent or the combined company to issue equity or equity-linked securities in connection with the transaction or in the future; the impact of the global COVID-19 pandemic on any of the foregoing risks; and those factors discussed in Parent’s final prospectus filed on May 1, 2020 under the heading “Risk Factors,” and other documents of Parent filed, or to be filed, with the SEC. If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that neither Parent nor the Companies presently know or that Parent and the Companies currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect Parent’s and the Companies’ expectations, plans or forecasts of future events and views as of the date of this Current Report on Form 8-K. Parent and the Companies anticipate that subsequent events and developments will cause Parent’s and the Companies’ assessments to change. However, while Parent and the Companies may elect to update these forward-looking statements at some point in the future, Parent and the Companies specifically disclaim any obligation to do so, unless required by applicable law. These forward-looking statements should not be relied upon as representing Parent’s and the Companies’ assessments as of any date subsequent to the date of this Current Report on Form 8-K. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Disclaimer
This Current Report shall neither constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which the offer, solicitation, or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction. This Current Report relates to a proposed business combination between Parent and the Companies.
Additional Information About the Proposed Business Combination and Where To Find It
The proposed business combination will be submitted to stockholders of Parent for their consideration and approval at a special meeting of stockholders. Parent intends to file a registration statement on Form S-4 (the “Registration Statement”) with the SEC, which will include preliminary and definitive proxy statements to be distributed to holders of Parent’s common stock in connection with Parent’s solicitation for proxies for the vote by Parent’s stockholders in connection with the proposed business combination and other matters as described in the Registration Statement, as well as the prospectus relating to the offer of the securities to be issued to the Companies’ shareholders in connection with the completion of the business combination. After the Registration Statement has been filed and declared effective, Parent will mail a definitive proxy statement and other relevant documents to its stockholders as of the record date established for voting on the proposed business combination. Parent’s stockholders and other interested persons are advised to read, once available, the preliminary proxy statement and any amendments thereto and, once available, the definitive proxy statement / prospectus, in connection with Parent’s solicitation of proxies for its special meeting of stockholders to be held to approve, among other things, the proposed business combination, because these documents will contain important information about Parent, the Companies and the proposed business combination. Stockholders may also obtain a copy of the preliminary or definitive proxy statement / prospectus, once available, as well as other documents filed with the SEC regarding the proposed business combination and other documents filed with the SEC by Parent, without charge, at the SEC’s website located at www.sec.gov or by directing a request to 1345 Avenue of the Americas, 46th Floor, New York, New York 10105, Attention: R. Edward Albert III, President (ealbert@fortress.com), CC: Alexander Gillette (agillette@fortress.com).
This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the U.S. Securities Act of 1933, as amended.
INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Participants in the Solicitation
Parent, the Companies and certain of their respective directors, executive officers and other members of management and employees may, under SEC rules, be deemed to be participants in the solicitations of proxies from Parent’s stockholders in connection with the proposed business combination. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of Parent’s stockholders in connection with the proposed business combination will be set forth in Parent’s proxy statement/prospectus when it is filed with the SEC. You can find more information about Parent’s directors and executive officers in Parent’s final prospectus dated April 29, 2020 and filed with the SEC on May 1, 2020. Additional information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be included in Parent’s preliminary and definitive proxy statement/prospectus when it becomes available. Stockholders, potential investors and other interested persons should read the proxy statement/prospectus carefully when it becomes available before making any voting or investment decisions. When available, these documents can be obtained free of charge from the sources indicated above.
Item 9.01. |
Financial Statements and Exhibits. |
(d) Exhibits.
The following exhibits are being filed herewith:
Exhibit
No. |
Description | |
2.1 | Amendment to the Agreement and Plan of Merger, dated as of August 26, 2020, by and among Fortress Value Acquisition Corp., MPMO Merger Corp., SNR Merger Company, MPMO Merger LLC, SNR Merger LLC, MP Mine Operations LLC, and Secure Natural Resources LLC | |
10.1 | Second Amended and Restated Sponsor Letter Agreement, dated as of August 26, 2020, by and among Fortress Value Acquisition Corp., Fortress Acquisition Sponsor LLC and the other parties thereto | |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Fortress Value Acquisition Corp. | ||||||
Date: August 26, 2020 | By: |
/s/ Andrew A. McKnight |
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Name: | Andrew A. McKnight | |||||
Title: | Chief Executive Officer |
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 (this Amendment) to that certain Agreement and Plan of Merger dated July 15, 2020 (the Agreement), is made and entered into as of August 26, 2020, by and among Fortress Value Acquisition Corp., a Delaware corporation (Parent), FVAC Merger Corp. I, a Delaware corporation and a direct, wholly-owned subsidiary of Parent (MPMO Merger Corp.), FVAC Merger LLC II, a Delaware limited liability company that is treated as a corporation for U.S. federal income tax purposes and a direct, wholly-owned subsidiary of Parent (SNR Merger Company), FVAC Merger LLC III, a Delaware limited liability company and a direct wholly-owned subsidiary of Parent (MPMO Merger LLC), FVAC Merger LLC IV, a Delaware limited liability company and a direct wholly-owned subsidiary of Parent (SNR Merger LLC and, together with MPMO Merger Corp., SNR Merger Company and MPMO Merger LLC, the Merger Subs), MP Mine Operations LLC, a Delaware limited liability company (MPMO) and Secure Natural Resources LLC, a Delaware limited liability company (SNR and, together with MPMO, each a Company and collectively, the Companies). Each of the Parent, the Merger Subs and the Companies shall individually be referred to herein as a Party and, collectively, the Parties. Capitalized terms used, but not defined herein, shall have the meanings given to such terms in the Agreement, and all references to Articles and Sections herein are references to Articles and Sections of the Agreement.
WHEREAS, in accordance with Section 10.13 of the Agreement, the Parties to the Agreement desire to amend certain terms of the Agreement as set forth in this Amendment;
WHEREAS, the Parent Board has (i) determined that it is in the best interests of Parent and its stockholders and declared it advisable to enter into this Amendment, and (ii) resolved to recommend the adoption of the Agreement, as amended by this Amendment, by the stockholders of Parent;
WHEREAS, the board of managers of MPMO has (i) determined that it is in the best interests of MPMO and the MPMO Unitholders and declared it advisable to enter into this Amendment, and (ii) resolved to recommend the adoption of the Agreement, as amended by this Amendment, by the MPMO Unitholders; and
WHEREAS, the board of managers of SNR has (i) determined that it is in the best interests of SNR and the SNR Unitholders and declared it advisable to enter into this Amendment, and (ii) resolved to recommend the adoption of the Agreement, as amended by this Amendment, by the SNR Unitholders.
NOW THEREFORE, in consideration of the mutual promises contained herein, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. Amendment to the Merger Agreement. Effective as of the date of this Amendment, the following provisions of the Agreement shall be amended as follows:
a. |
Exhibit H to the Agreement is hereby deleted and replaced in its entirety with Exhibit A attached hereto. |
b. |
Section 3.1(d) of the Agreement is hereby deleted and replaced in its entirety with the following: |
In the event that there is an agreement with respect to a Parent Sale entered into after the Closing and prior to the date that is ten (10) years following the Closing Date, the First Earnout Achievement Date shall be deemed to occur on the day prior to the closing of such Parent Sale if the per share value of consideration paid for each share of Parent Stock in such Parent Sale is equal to or in excess of $18.00, and the Second Earnout Achievement Date shall be deemed to occur on the day prior to the closing of such Parent Sale if the per share value of consideration paid for each share of Parent Stock in such Parent Sale is equal to or in excess of $20.00 (in each case, to the extent such Parent Stock has not previously been issued) and Parent
shall issue the Parent Stock issuable pursuant to Section 3.1(a) and Section 3.1(b) on the date prior to the closing of such Parent Sale (in each case, to the extent such Parent Stock has not previously been issued). To the extent the per share value of consideration paid for each share of Parent Stock in such Parent Sale includes contingent consideration or property other than cash, the Parent Board shall determine, in good faith, the per share value of consideration paid for each share of Parent Stock in such Parent Sale and any equitable adjustment required in respect of any unissued Earnout Shares.
c. |
The first sentence of Section 7.1(a) of the Agreement is hereby replaced in its entirety with the following: |
As promptly as reasonably practicable following the date of this Agreement, Parent shall use reasonable best efforts to prepare and, subject to receipt by Parent from the Companies of all information relating to the Companies as required pursuant to Section 7.1(b), file with the SEC, in preliminary form, a registration statement on Form S-4 in connection with the transactions contemplated hereby (as amended or supplemented, the S-4 Registration Statement / Proxy Statement) (it being understood that the S-4 Registration Statement / Proxy Statement shall include a proxy statement / prospectus for the purpose of soliciting the MPMO Unitholder Approval and the SNR Unitholder Approval, and for the purpose of soliciting proxies from the shareholders of Parent at the Special Meeting to adopt and approve the Parent Stockholder Matters and other matters reasonably related to the Parent Stockholder Matters, all in accordance with and as required by Parent Organizational Documents, applicable Legal Requirements and any applicable rules and regulations of the SEC and NYSE), in which Parent shall: (i) provide Parents shareholders with the opportunity to redeem up to 34,500,000 Parent Class A Stock pursuant to a Parent Stockholder Redemption; (ii) solicit proxies from holders of Parent Stock to vote at the Special Meeting (as defined below) in favor of (A) the adoption and approval of this Agreement and the transactions contemplated hereby (including the Mergers), (B) the issuance of shares of Parent Class A Common Stock in connection with the PIPE Investment and the Mergers, (C) the change of the name of Parent to MP Materials Corp., (D) an increase in the number of authorized Parent Stock, (E) amendments to the Parent Organizational Documents to be effective from and after the Closing, including the classification of the Parent Board, (F) the adoption and approval of a new equity incentive plan, attached as Exhibit J hereto (the Incentive Plan), (G) the election of the members of the Parent Board in accordance with Section 7.2(e) hereof, and (H) such other matters as mutually agreed upon between the Company and Parent, at a meeting of holders of Parent Class A Stock to be called and held for such purpose (the Special Meeting) (the matters set forth in clauses (A) through (H) being referred to herein as the Parent Stockholder Matters); (iii) register under the Securities Act the shares of Parent Class A Stock to be issued by Parent in connection with the Transactions; and (iv) file with the SEC financial and other information about the Transactions in accordance with and as required by the Parent Organizational Documents, applicable Legal Requirements and any applicable rules and regulations of the SEC and the NYSE. The S-4 Registration Statement / Proxy Statement will comply as to form and substance with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder.
2. Authority. Each of the Parties hereby warrants, covenants and represents that it has the full authority to execute this Amendment and that, when executed, this Amendment shall be valid, binding, and legally enforceable against such Party.
3. Agreement. From and after the date hereof, each reference in the Agreement to this Agreement, hereunder, hereof, herein, or words of like import shall mean and be a reference to the Agreement as amended by this Amendment. Except as specifically set forth above, the Agreement shall remain unaltered and in full force and effect and the respective terms, conditions and covenants thereof are hereby in all respects ratified and confirmed. In the event of any conflict between this Amendment and the Agreement, the terms of this Amendment shall control.
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4. Governing Law. This Amendment and the consummation thereof, and any action, suit, dispute, controversy or claim arising out of this Amendment and the consummation thereof, or the validity, interpretation, breach or termination of this Amendment and the consummation thereof, shall be governed by and construed in accordance with the internal law of the State of Delaware regardless of the law that might otherwise govern under applicable principles of conflicts of law thereof.
5. Counterparts; Electronic Delivery. This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same document and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that all Parties need not sign the same counterpart. Delivery by email to counsel for the other Parties of a counterpart executed by a Party shall be deemed to meet the requirements of the previous sentence.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be executed as of the date first written above.
FORTRESS VALUE ACQUISITION CORP. | ||
By: |
/s/ Andrew A. McKnight |
|
Name: Andrew A. McKnight |
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Title: Chief Executive Officer |
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FVAC MERGER CORP. I | ||
By: |
/s/ Andrew A. McKnight |
|
Name: Andrew A. McKnight |
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Title: President |
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FVAC MERGER LLC II |
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By: |
/s/ Andrew A. McKnight |
|
Name: Andrew A. McKnight |
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Title: President | ||
FVAC MERGER LLC III | ||
By: |
/s/ Andrew A. McKnight |
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Name: Andrew A. McKnight | ||
Title: President |
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER]
FVAC MERGER LLC IV | ||
By: |
/s/ Andrew A. McKnight |
|
Name: Andrew A. McKnight | ||
Title: President | ||
MP MINE OPERATIONS LLC | ||
By: |
/s/ James H. Litinsky |
|
Name: James H. Litinsky | ||
Title: Co-Chairman | ||
SECURE NATURAL RESOURCES LLC | ||
By: |
/s/ Randall Weisenburger |
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Name: Randall Weisenburger | ||
Title: Manager |
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER]
Fortress Value Acquisition Corp.
1345 Avenue of the Americas, 46th Floor
New York, New York 10105
August 26, 2020
Re: Restated Parent Sponsor Letter Agreement
Ladies and Gentlemen:
Reference is made to that certain letter agreement dated as of July 15, 2020 (the Letter Agreement), by and among Fortress Acquisition Sponsor LLC (the Sponsor) and each of the undersigned individuals, each of whom is a member of Parents board of directors and/or management team (each, an Insider and collectively, the Insiders), which Letter Agreement amended and restated in its entirety that certain Letter Agreement, dated as of April 29, 2020, entered into and delivered to you in connection with that certain Agreement and Plan of Merger (the Merger Agreement), dated as of July 15, 2020, by and among Fortress Value Acquisition Corp., a Delaware corporation (Parent), MP Mine Operations LLC, a Delaware limited liability company (MPMO), Secure Natural Resources LLC, a Delaware limited liability company (SNR and, together with MPMO, the Companies), and the other parties thereto, as amended (the Merger Agreement). This letter (the Restated Letter) is being entered into and delivered to you in connection with the transactions contemplated by the Merger Agreement and serves to amend and restate the Letter Agreement. Certain capitalized terms used herein are defined in paragraph 11 hereof. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.
In connection with the transactions contemplated by the Merger Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Sponsor and each of the Insiders hereby severally (and not jointly and severally) agree with Parent, as follows:
1. The Sponsor and each Insider agrees with Parent that if Parent seeks Parent Stockholder Approval of a proposed Business Combination (including, without limitation, the Transactions), then in connection with such proposed Business Combination, it, he or she shall: (i) appear at such meeting or otherwise cause any Covered Shares owned by it, him or her to be counted as present thereat for the purpose of establishing a quorum, (ii) vote (or execute and return an action by written consent), or cause to be voted at such meeting (or validly execute and return and cause such consent to be granted with respect thereto), all of its, his or her Covered Shares in favor of each Parent Stockholder Matter and any other matters necessary or reasonably requested by Parent in connection with a proposed Business Combination and (iii) not redeem any of its Covered Shares owned by it, him or her for redemption in connection with such stockholder approval or proposed Business Combination.
2. The Sponsor and each Insider hereby agrees with Parent that in the event that Parent fails to consummate a Business Combination within 24 months from the closing of the Public Offering, or such later period approved by Parents stockholders in accordance with Parents amended and restated certificate of incorporation, the Sponsor and each Insider shall take all reasonable steps to cause Parent to (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than 10 business days thereafter, subject to lawfully available funds therefor, redeem 100% of the Common Stock sold as part of the Units in the Public Offering (the Offering Shares), at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to Parent to pay its taxes (less up to $100,000 of interest to pay dissolution expenses), divided by the number of then outstanding Offering Shares, which redemption will completely extinguish all Public Stockholders rights as stockholders (including the right to receive further liquidating distributions, if any), and (iii) as promptly as reasonably possible following such redemption, subject to the approval of Parents remaining stockholders and Parents board of directors, dissolve and liquidate, subject in
each case to Parents obligations under Delaware law to provide for claims of creditors and other requirements of other applicable law. The Sponsor and each Insider agrees to not propose any amendment (i) to Parents amended and restated certificate of incorporation that would affect the substance or timing of Parents obligation to allow redemption in connection with Parents initial Business Combination or to redeem 100% of the Offering Shares if Parent does not complete a Business Combination within 24 months from the closing of the Public Offering or (ii) with respect to any other provision of Parents amended and restated certificate of incorporation relating to stockholders rights or pre-initial Business Combination activity, unless Parent provides its Public Stockholders with the opportunity to redeem their shares of Common Stock upon approval of any such amendment at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to Parent to pay its taxes, divided by the number of then outstanding Offering Shares.
The Sponsor and each Insider acknowledges that it, he or she has no right, title, interest or claim of any kind in or to any monies held in the Trust Account or any other asset of Parent as a result of any liquidation of Parent with respect to the Founder Shares held by it, him or her. The Sponsor and each Insider hereby further waives, with respect to any shares of Common Stock held by it, him or her, if any, any redemption rights it, he or she may have in connection with the consummation of a Business Combination, including, without limitation, any such rights available in the context of a stockholder vote to approve such Business Combination or in the context of a tender offer made by Parent to purchase shares of Common Stock (although the Sponsor, the Insiders and their respective affiliates shall be entitled to redemption and liquidation rights with respect to any Offering Shares they hold if Parent fails to consummate a Business Combination within 24 months from the date of the closing of the Public Offering). The Sponsor and each Insider hereby further waives, with respect to any shares of Common Stock held by it, him or her, if any, any redemption rights it, he or she may have in connection with a stockholder vote to approve an amendment to Parents amended and restated certificate of incorporation (A) to modify the substance or timing of Parents obligation to allow redemption in connection with Parents initial Business Combination or to redeem 100% of the Offering Shares if Parent does not complete a Business Combination within 24 months from the closing of the Public Offering or (B) with respect to any other provision relating to stockholders rights or pre-initial Business Combination activity.
3. Notwithstanding the provisions set forth in paragraph 7(a) below, during the period commencing on the effective date of the Underwriting Agreement and ending 180 days after such date, the Sponsor and each Insider shall not, without the prior written consent of the Representatives, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended (the Exchange Act), and the rules and regulations of the Securities and Exchange Commission (the Commission) promulgated thereunder, with respect to any Units, shares of Common Stock, Founder Shares, Parent Warrants or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock owned by it, him or her, (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any Units, shares of Common Stock, Founder Shares, Parent Warrants or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock owned by it, him or her, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (iii) publicly announce any intention to effect any transaction, including the filing of a registration statement, specified in clause (i) or (ii). Each of the Insiders and the Sponsor acknowledges and agrees that, prior to the effective date of any release or waiver of the restrictions set forth in this paragraph 3 or paragraph 7 below, Parent shall 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 shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if the release or waiver is effected solely to permit a transfer not for consideration and the transferee has agreed in writing to be bound by the same terms described in this Restated Letter to the extent and for the duration that such terms remain in effect at the time of the transfer.
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4. In the event of the liquidation of the Trust Account, the Sponsor (which for purposes of clarification shall not extend to any other shareholders, members or managers of the Sponsor) agrees to indemnify and hold harmless Parent against any and all loss, liability, claim, damage and expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably incurred in investigating, preparing or defending against any litigation, whether pending or threatened, or any claim whatsoever) to which Parent may become subject as a result of any claim by (a) any third party for services rendered (other than Parents independent public accountants) or products sold to Parent or (b) a prospective target business with which Parent has discussed entering into a transaction agreement (a Target); provided, however, that such indemnification of Parent by the Sponsor shall apply only to the extent necessary to ensure that such claims by a third party for services rendered (other than Parents independent public accountants) or products sold to Parent or a Target do not reduce the amount of funds in the Trust Account to below (i) $10.00 per Offering Share or (ii) such lesser amount per Offering Share held in the Trust Account due to reductions in the value of the trust assets as of the date of the liquidation of the Trust Account, in each case, net of the amount of interest earned on the property in the Trust Account which may be withdrawn to pay its taxes, except as to any claims by a third party (including a Target) who executed a waiver of any and all rights to seek access to the Trust Account and except as to any claims under Parents indemnity of the Public Offering underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended. In the event that any such executed waiver is deemed to be unenforceable against such third party, the Sponsor shall not be responsible to the extent of any liability for such third party claims. The Sponsor shall have the right to defend against any such claim with counsel of its choice reasonably satisfactory to Parent if, within 15 days following written receipt of notice of the claim to the Sponsor, the Sponsor notifies Parent in writing that it shall undertake such defense. For the avoidance of doubt, none of Parents officers or directors will indemnify Parent for claims by third parties, including, without limitation, claims by vendors and prospective target businesses.
5. The Sponsor and each Insider hereby agrees and acknowledges that: (a) the Public Offering underwriters would be irreparably injured in the event of a breach by such Sponsor or Insider of its, his or her obligations under paragraphs 1, 2, 3, 4, 5, 7(a) and 9, as applicable, of this Restated Letter, (b) the Companies would be irreparably injured in the event of a breach by such Sponsor or Insider of its, his or her obligations under paragraphs 1, 5, 6, 7 and 9, as applicable, of this Restated Letter, (c) monetary damages may not be an adequate remedy for such breach and (d) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such party may have in law or in equity, in the event of such breach.
6. The Sponsor and each Insider hereby agrees that, subject to the satisfaction or waiver of each of the conditions to Closing set forth in Article VIII of the Merger Agreement, immediately prior to the Closing, (a)(i) if the amount of cash available in the Trust Account, less (ii) any amounts required to satisfy Parents stockholder redemptions, plus (b) the PIPE Investment Amount, is less than $495 million, then Sponsor and each Insider shall surrender to Parent a number of Founder Shares (the Surrendered Shares) equal to their pro rata share of the product of (x) 8,625,000 and (y) a fraction, the numerator of which is (1) $495 million, minus (2)(A) the cash available in the Trust Account after deducting the amount required to satisfy redemptions, plus (B) the PIPE Investment Amount, and the denominator of which is $495 million.
7. (a) Notwithstanding the provisions set forth in paragraph 3, the Sponsor and each Insider agrees that it, he or she shall not Transfer any Founder Shares (or shares of Common Stock issuable upon conversion thereof) or any Private Placement Warrants (or shares of Capital Stock issued or issuable upon the exchange, exercise or conversion of the Private Placement Warrants) until the earliest to occur of: (i) one year after the completion of Parents initial Business Combination; (ii) subsequent to Parents initial Business Combination, if the last reported sale price of the shares of Common Stock equals or exceeds $12.00 per share for any 20 trading days within any 30-trading day period commencing at least 150 days after Parents initial Business Combination; and (iii) the date following the completion of Parents initial Business Combination on which Parent completes a liquidation, merger, stock exchange, reorganization or other similar transaction that results in all of Parents Public Stockholders having the right to exchange their shares of common stock for cash, securities or other property (the Lock-up Period).
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(b) Notwithstanding the provisions set forth in paragraphs 3 and 7(a), Transfers of the Founder Shares, Private Placement Warrants and shares of Capital Stock issued or issuable upon the exchange, exercise or conversion of the Private Placement Warrants or the Founder Shares and that are held by the Sponsor, Insider or any of their permitted transferees (that have complied with this paragraph 7(b)), are permitted: (i) to Parents officers or directors, any affiliates or family members of any of Parents officers or directors, any members of the Sponsor, or any affiliates of the Sponsor; (ii) in the case of an individual, by gift to a member of the individuals immediate family, to a trust, the beneficiary of which is a member of the individuals immediate family or an affiliate of such person, or to a charitable organization; (iii) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual; (iv) in the case of an individual, pursuant to a qualified domestic relations order; (v) by private sales or transfers made in connection with the consummation of a Business Combination at prices no greater than the price at which the securities were originally purchased; (vi) transfers in the event of Parents liquidation prior to the completion of an initial Business Combination; (vii) by virtue of the laws of the State of Delaware or the Sponsors limited liability company agreement upon dissolution of the Sponsor; and (viii) in the event of Parents liquidation, merger, capital stock exchange, reorganization or other similar transaction which results in all of Parents stockholders having the right to exchange their shares of Common Stock for cash, securities or other property subsequent to the completion of Parents initial Business Combination; provided, however, that in the case of clauses (i) through (v), any such permitted transferee must enter into a written agreement agreeing to be bound by the restrictions herein.
(c) Vesting Provisions for Founder Shares. The Sponsor and each of the Insiders agrees that, as of the Closing, all of the remaining shares of Common Stock issued or issuable upon the exercise or conversion of the Founder Shares following Sponsors surrender of the Surrendered Shares to Parent (the Vesting Shares) shall be unvested and shall be subject to the vesting and forfeiture provisions set forth in this paragraph 7(c). The Sponsor and each of the Insiders agrees that it shall not (and will cause its Affiliates not to) Transfer any unvested Vesting Shares prior to the later of (x) the expiration of the Lock-up Period and (y) the date such Vesting Shares become vested pursuant to this paragraph 7(c).
(i) Vesting of Shares.
(1) 50% of the Vesting Shares beneficially owned by Sponsor and each of the Insiders shall vest at such time as a $12.00 Stock Price Level is achieved on or before the date that is ten years after the Closing Date.
(2) 25% of the Vesting Shares beneficially owned by Sponsor and each of the Insiders shall vest at such time as a $14.00 Stock Price Level is achieved on or before the date that is ten years after the Closing Date.
(3) 25% of the Vesting Shares beneficially owned by Sponsor and each of the Insiders shall vest at such time as a $16.00 Stock Price Level is achieved on or before the date that is ten years after the Closing Date.
(4) Holders of Vesting Shares subject to the vesting provisions of this paragraph 7(c) shall be entitled to vote such Vesting Shares and receive dividends and other distributions with respect to such Vesting Shares prior to vesting; provided, that dividends and other distributions with respect to Vesting Shares that are subject to performance vesting pursuant to paragraph 7(c)(i) shall be set aside by Parent and shall be paid to such holders upon the vesting of such Vesting Shares (if at all).
(ii) Acceleration of Vesting upon a Parent Sale. Notwithstanding the foregoing, in the event Parent enters into a binding agreement with respect to a Parent Sale on or before the tenth (10th) anniversary of the Closing Date, and the value of the purchase consideration paid for each share of Parent Stock in such Parent Sale is equal to or in excess of (a) $12.00, then the Vesting Shares that were eligible to vest pursuant to paragraph 7(c)(i)(1) and remain unvested, if any, shall vest on the day immediately preceding the closing of such Parent
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Sale, (b) $14.00, then the Vesting Shares that were eligible to vest pursuant to paragraph 7(c)(i)(2) and remain unvested, if any, shall vest on the day immediately preceding the closing of such Parent Sale, and/or (c) $16.00, then the Vesting Shares that were eligible to vest pursuant to paragraph 7(c)(i)(3) and remain unvested, if any, shall vest on the day immediately preceding the closing of such Parent Sale. To the extent the consideration paid for each share of Parent Stock in such Parent Sale includes contingent consideration or property other than cash, Parents board of directors shall determine, in good faith, the value of the purchase consideration paid for each share of Parent Stock in such Parent Sale and any equitable adjustment required in respect of any unvested Vesting Shares. For the avoidance of doubt, following a transaction or business combination that is not a Parent Sale hereunder, including a transaction or business combination in which the equity securities of the surviving entity of such business combination or other transaction are registered under the Exchange Act and listed or quoted for trading on a national securities exchange, the equitable adjustment provisions of paragraph 17 shall apply, including, without limitation, to the performance vesting criteria set forth in paragraph 7(c)(i).
(iii) Forfeiture of Unvested Founder Shares. Vesting Shares that remain unvested on the first Business Day after the tenth (10th) anniversary of the Closing Date shall be surrendered by Sponsor or the applicable Insider to Parent, without any consideration for such Transfer.
(iv) Stock Price Level. For purposes of this paragraph 7(c), the applicable Stock Price Level will be considered achieved only when the VWAP of Common Stock on the New York Stock Exchange equals or exceeds the applicable threshold for any 20 trading days during a 30 consecutive trading day period. The Stock Price Levels will be equitably adjusted on account of any share split, reverse share split or similar equity restructuring transaction in accordance with paragraph 17 hereof.
(v) Waiver of Conversion Ratio Adjustment. (A) Section 4.3(b)(i) of Parents amended and restated certificate of incorporation provides that each Founder Share shall automatically convert into one share of Common Stock (the Initial Conversion Ratio) at the time of the Business Combination, and (B) Section 4.3(b)(ii) of Parents amended and restated certificate of incorporation provides that the Initial Conversion Ratio shall be adjusted (the Adjustment) in the event that additional shares of Common Stock are issued in excess of the amounts offered in Parents initial public offering of securities such that the Sponsor and the Insiders shall continue to own 25% of the issued and outstanding shares of Capital Stock after giving effect to such issuance.
(vi) As of and conditioned upon the Closing, the Sponsor and each Insider hereby irrevocably relinquishes and waives any and all rights the Sponsor and each Insider has or will have under Section 4.3(b)(ii) of Parents amended and restated certificate of incorporation to receive shares of Common Stock in excess of the number issuable at the Initial Conversion Ratio upon conversion of the existing Founder Shares held by him, her or it, as applicable, in connection with the Closing as a result of any Adjustment.
8. The Sponsor and each Insider represents and warrants that (i) it, he or she has never been suspended or expelled from membership in any securities or commodities exchange or association or had a securities or commodities license or registration denied, suspended or revoked and (ii) it, he or she has full right and power, without violating any Contract to which it, he or she is bound, to enter into this Restated Letter. Each Insiders biographical information furnished to Parent (including any such information included in the Prospectus) is true and accurate in all respects and does not omit any material information with respect to such Insiders background. The Sponsors and each Insiders questionnaire furnished to Parent is true and accurate in all respects. The Sponsor and each Insider represents and warrants that: it, he or she is not subject to or a respondent in any legal action for, any injunction, cease-and-desist order or order or stipulation to desist or refrain from any act or practice relating to the offering of securities in any jurisdiction; it, he or she has never been convicted of, or pleaded guilty to, any crime (i) involving fraud, (ii) relating to any financial transaction or handling of funds of another person, or (iii) pertaining to any dealings in any securities and it, he or she is not currently a defendant in any such criminal proceeding.
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9. Except as disclosed in the Prospectus, neither the Sponsor nor any Insider nor any affiliate of the Sponsor or any Insider, shall receive from Parent any finders fee, reimbursement, consulting fee, monies in respect of any repayment of a loan or other compensation prior to, or in connection with any services rendered in order to effectuate the consummation of Parents initial Business Combination (regardless of the type of transaction that it is), other than the following, none of which will be made from the proceeds held in the Trust Account prior to the completion of the initial Business Combination: repayment of a loan and advances of up to an aggregate of $300,000 made to Parent by the Sponsor to cover offering related and organizational expenses; payment to an affiliate of the Sponsor for office space, administrative support services for a total of $20,000 per month; reimbursement for any out-of-pocket expenses related to identifying, investigating and consummating an initial Business Combination, and repayment of loans, if any, and on such terms as to be determined by Parent from time to time, made by the Sponsor or any of Parents officers or directors to finance transaction costs in connection with an intended initial Business Combination, provided, that, if Parent does not consummate an initial Business Combination, a portion of the working capital held outside the Trust Account may be used by Parent to repay such loaned amounts so long as no proceeds from the Trust Account are used for such repayment. In the event the Merger Agreement is terminated in accordance with its terms, up to $1,500,000 of such loans may be convertible into warrants of the post Business Combination entity at a price of $1.50 per warrant at the option of the lender. Such warrants would be identical to the Private Placement Warrants.
10. The Sponsor and each Insider has full right and power, without violating any agreement to which it, he or she is bound (including, without limitation, any non-competition or non-solicitation agreement with any employer or former employer), to enter into this Restated Letter and, as applicable, to serve as a director on the board of directors of Parent and hereby consents to being named in the Prospectus as a director of Parent.
11. As used herein, the following terms shall have the respective meanings set forth below:
(a) beneficially own, beneficial ownership and beneficial owner shall have the meaning ascribed to it in Section 13(d) of the Exchange Act.
(b) Business Combination shall mean a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving Parent and one or more businesses.
(c) Capital Stock shall mean, collectively, the Common Stock and the Founder Shares.
(d) Common Stock shall mean Parents Class A common stock, par value $0.0001 per share.
(e) Covered Shares shall mean, in respect of any Sponsor or Insider, all shares of Capital Stock owned (beneficially or of record) by such Sponsor or Insider as of the date of the Merger Agreement, together with any additional shares of Common Stock or Founder Shares (or any securities convertible into or exercisable or exchangeable for Common Stock or Founder Shares) in which such Sponsor or Insider acquires record or beneficial ownership after the date of the Merger Agreement, including by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exchange, exercise or conversion of any such securities.
(f) Founder Shares shall mean the 8,625,000 shares of Parents Class F common stock, par value $0.0001 per share, initially issued to the Sponsor for an aggregate purchase price of $25,000, or approximately $0.003 per share, prior to the consummation of the Public Offering.
(g) Parent Sale shall mean the occurrence of any of the following events: (i) any Person or any group of Persons acting together which would constitute a group for purposes of Section 13(d) of the Exchange Act or any successor provisions thereto is or becomes the beneficial owner, directly or indirectly, of securities of Parent representing more than 50% of the combined voting power of Parents then outstanding voting securities, (ii) there is consummated a merger or consolidation of Parent with any other corporation or other entity, and,
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immediately after the consummation of such merger or consolidation, either (A) the board of directors of Parent immediately prior to the merger or consolidation does not constitute at least a majority of the board of directors of the company surviving the merger or, if the surviving company is a Subsidiary, the ultimate parent thereof, or (B) the voting securities of Parent immediately prior to such merger or consolidation do not continue to represent or are not converted into more than 50% of the combined voting power of the then outstanding voting securities of the Person resulting from such merger or consolidation or, if the surviving company is a Subsidiary, the ultimate parent thereof, or (ii) the shareholders of Parent approve a plan of complete liquidation or dissolution of Parent or there is consummated an agreement or series of related agreements for the sale, lease or other disposition, directly or indirectly, by Parent of all or substantially all of the assets of Parent and its Subsidiaries, taken as a whole, other than such sale or other disposition by Parent of all or substantially all of the assets of Parent and its Subsidiaries, taken as a whole, to an entity at least 50% of the combined voting power of the voting securities of which are owned by shareholders of Parent in substantially the same proportions as their ownership of Parent immediately prior to such sale.
(h) Private Placement Warrants shall mean the warrants to purchase up to 5,933,333 shares of Common Stock of Parent that the Sponsor purchased for an aggregate purchase price of $8,900,000 in the aggregate, or $1.50 per warrant, in a private placement that occurred substantially concurrently with the consummation of the Public Offering.
(i) Prospectus shall mean the registration statement on Form S-1 and prospectus filed by Parent with the Commission in connection with the Public Offering.
(j) Public Offering shall mean the underwritten initial public offering of 34,500,000 of Parents units (the Units), including the issuance of 4,500,000 Units as a result of the Parent underwriters exercise of their over-allotment option in full, each comprised of one share of Common Stock and one-third of one warrant.
(k) Public Stockholders shall mean the holders of securities issued in the Public Offering.
(l) Transfer shall mean the (a) sale or assignment of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended and the rules and regulations of the Commission promulgated thereunder with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).
(m) VWAP shall mean, for any security as of any date(s), the dollar volume-weighted average price for such security on the principal securities exchange or securities market on which such security is then traded during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg through its HP function (set to weighted average) or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the electronic bulletin board for such security during the period beginning at 9:30:01 a.m., New York time, and ending at 4:00:00 p.m., New York time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours, the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported by OTC Markets Group Inc. If the VWAP cannot be calculated for such security on such date(s) on any of the foregoing bases, the VWAP of such security on such date(s) shall be the fair market value per share on such date(s) as reasonably determined by Parent.
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12. This Restated Letter and, solely as between Parent and the Sponsor, the Parent Sponsor Warrant Exchange Agreement, constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Restated Letter may not be changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except by a written instrument executed by all parties hereto.
13. No party hereto may assign either this Restated Letter or any of its rights, interests, or obligations hereunder without the prior written consent of the other parties and the Companies, who are intended third party beneficiaries of paragraph 5 hereof (except that, following any valid termination of the Merger Agreement, no consent from the Companies shall be required). Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee. This Restated Letter shall be binding on Parent, Sponsor and each Insider and their respective successors, heirs and assigns and permitted transferees.
14. This Restated Letter shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parties hereto (i) all agree that any action, proceeding, claim or dispute arising out of, or relating in any way to, this Restated Letter shall be brought and enforced in the courts of New York City, in the State of New York, and irrevocably submit to such jurisdiction and venue, which jurisdiction and venue shall be exclusive and (ii) waive any objection to such exclusive jurisdiction and venue or that such courts represent an inconvenient forum.
15. Any notice, consent or request to be given in connection with any of the terms or provisions of this Restated Letter shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or facsimile transmission.
16. This Restated Letter shall terminate on the earlier of (i) the latest of (x) the expiration of the Lock-up Period or (y) the vesting in full and delivery of all Vesting Shares, or (ii) the liquidation of Parent. No such termination shall relieve the Sponsor, the Insiders or Parent from any liability resulting from a breach of this Restated Letter occurring prior to such termination.
17. If, and as often as, there are any changes in Parent, the Founder Shares or Common Stock by way of stock split, stock dividend, combination or reclassification, or through merger, consolidation, reorganization, recapitalization or business combination, or by any other means, equitable adjustment shall be made to the provisions of this Restated Letter as may be required so that the rights, privileges, duties and obligations hereunder shall continue with respect to Parent, Parents successor or the surviving entity of such transaction, the Founder Shares or Common Stock, each as so changed. For the avoidance of doubt, such equitable adjustment shall be made to the applicable Stock Price Levels set forth in paragraph 7(c).
18. Each party hereto that is also a party to that certain Registration Rights Agreement, dated as of April 29, 2020, by and among Parent, the Sponsor and the other parties signatory thereto (the Existing Registration Rights Agreement), hereby agrees to amend and restate the Existing Registration Rights Agreement, effective as of the Closing. At or prior to the Closing, the Sponsor and each Insider contemplated to become a party to the Registration Rights Agreement shall deliver to Parent such agreement, duly executed by such Person, in the form attached to the Merger Agreement.
[Signature Page Follows]
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Sincerely, |
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SPONSOR: |
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FORTRESS ACQUISITION SPONSOR LLC |
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By: |
/s/ Alexander Gillette |
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Name: |
Alexander Gillette |
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Title: |
Secretary |
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INSIDERS: |
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By: |
/s/ R. Edward Albert III |
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Name: |
R. Edward Albert III |
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By: |
/s/ Daniel N. Bass |
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Name: |
Daniel N. Bass |
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By: |
/s/ Micah B. Kaplan |
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Name: |
Micah B. Kaplan |
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By: |
/s/ Aaron F. Hood |
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Name: |
Aaron F. Hood |
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By: |
/s/ Carmen Policy |
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Name: |
Carmen Policy |
Acknowledged and Agreed:
PARENT:
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FORTRESS VALUE ACQUISITION CORP. |
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By: |
/s/ Andrew A. McKnight |
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Name: |
Andrew A. McKnight |
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Title: |
Chief Executive Officer |