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): July 2, 2021
ALIGHT GROUP, INC.
(Exact name of registrant as specified in its charter)
Delaware | 001-39299 | 85-0545098 | ||
(State or other jurisdiction
of incorporation) |
(Commission
File Number) |
(I.R.S. Employer
Identification No.) |
4 Overlook Point Lincolnshire, IL |
60069 | |
(Address of principal executive offices) | (Zip Code) |
(224) 737-7000
(Registrant’s telephone number, including area code)
Foley Trasimene Acquisition Corp.
1701 Village Center Circle
Las Vegas, NV 89134
(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 (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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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
|
Name of each exchange
|
||
Units, each consisting of one share of Class A common stock and one-third of one Warrant | WPF.U | The New York Stock Exchange | ||
Class A common stock, par value $0.0001 per share | WPF | The New York Stock Exchange | ||
Warrants, each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share | WPF.WS | The 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). ☒
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. ☐
Introductory Note
On July 2, 2021 (the “Closing Date”), Foley Trasimene Acquisition Corp., a Delaware corporation n/k/a Alight Group, Inc. (“FTAC”), completed its previously announced business combination transaction (the “Business Combination”) contemplated by the Amended and Restated Business Combination Agreement (the “Business Combination Agreement”), dated as of April 29, 2021, by and among FTAC, Tempo Holding Company, LLC, a Delaware limited liability company (“Tempo”), Alight, Inc., a Delaware corporation (“Alight”), Acrobat SPAC Merger Sub, Inc., a Delaware corporation (“FTAC Merger Sub”), Acrobat Merger Sub, LLC, a Delaware limited liability company (“Tempo Merger Sub”), Acrobat Blocker 1 Corp., Acrobat Blocker 2 Corp., Acrobat Blocker 3 Corp. and Acrobat Blocker 4 Corp., each of which is a Delaware corporation (the “Blocker Merger Subs”), Tempo Blocker I, LLC, a Delaware limited liability company (“Tempo Blocker 1”), Tempo Blocker II, LLC, a Delaware limited liability company (“Tempo Blocker 2”), Blackstone Tempo Feeder Fund VII, L.P., a Delaware limited partnership (“Tempo Blocker 3”), New Mountain Partners IV Special (AIV-E2), LP, a Delaware limited partnership (“Tempo Blocker 4” and, together with Tempo Blocker 1, Tempo Blocker 2, Tempo Blocker 3 and Tempo Blocker 4, the “Tempo Blockers”) and New Mountain Partners IV Special (AIV-E), LP, a Delaware limited partnership.
On the Closing Date, pursuant to the Business Combination Agreement, among other things, (i) FTAC Merger Sub merged with and into FTAC, with FTAC being the surviving corporation in the merger and becoming a subsidiary of Alight (the “FTAC Merger”) and being renamed Alight Group, Inc. (in such capacity, the “FTAC Surviving Corporation”), (ii) Tempo Merger Sub merged with and into Tempo, with Tempo being the surviving company in the merger (the “Tempo Merger”), becoming a subsidiary of Alight and being renamed Alight Holding Company, LLC (in such capacity, “Alight Holdings”) and (iii) each of the Blocker Merger Subs merged with and into the correspondingly numbered Tempo Blocker, with the applicable Tempo Blocker being the surviving entity in such mergers. As a result of the Business Combination, and by virtue of such series of mergers and related transactions, the combined company is now organized in an “Up-C” structure, in which substantially all of the assets and business of Alight are held by Alight Holdings, of which Alight is the managing member pursuant to the terms of the Second Amended and Restated Limited Liability Company Agreement of Alight Holdings (the “Alight Holdings Operating Agreement”) that went into effect upon the completion of the Business Combination.
Capitalized terms not otherwise defined herein have the meaning set forth in FTAC’s definitive proxy statement and Alight’s final prospectus filed with the Securities and Exchange Commission in connection with the Business Combination on June 4, 2021 (the “Definitive Proxy/Prospectus”).
The description of the Business Combination Agreement, the Business Combination and related transactions in this Current Report on Form 8-K does not purport to be complete and is subject, and qualified in its entirety by reference, to the full text of the Business Combination Agreement, which is attached as Exhibit 2.1 hereto and is incorporated herein by reference. The Business Combination Agreement has been included as an exhibit to this Current Report on Form 8-K to provide investors with information regarding its terms. It is not intended to provide any other factual information about FTAC, Alight, Tempo or any other party to the Business Combination Agreement or any related agreement or transaction.
Item 1.01. |
Entry into a Material Definitive Agreement |
The information set forth in the Introductory Note and Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 1.01.
In connection with the completion of the Business Combination, FTAC entered into a Warrant Assumption Agreement, dated as of July 2, 2021, by and among FTAC, the Company and Continental Stock Transfer & Trust Company, a New York corporation (“Continental”, and such agreement, the “Warrant Assumption Agreement”). Pursuant to the Warrant Assumption Agreement, at the effective time of the FTAC Merger (the “FTAC Effective Time”), FTAC assigned to the Company, and the Company assumed, all of FTAC’s rights and obligations under the Warrant Agreement, dated as of May 29, 2020, by and between FTAC and Continental, as warrant agent (the “Warrant Agreement”), including the obligation to issue shares of Alight Class A Common Stock upon the exercise of the Converted FTAC Warrants (as defined below) pursuant thereto.
The foregoing description of the Warrant Assumption Agreement does not purport to be complete and is subject, and qualified in its entirety by reference, to the full text of the Warrant Assumption Agreement, which is attached hereto as Exhibit 4.1 and is incorporated herein by reference.
Item 2.01. |
Completion of Acquisition or Disposition of Assets |
The information set forth in the Introductory Note and Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Consideration Paid to FTAC Stockholders
At the FTAC Effective Time, pursuant to the Business Combination Agreement, (i) each share of FTAC’s Class A common stock, par value $0.0001 per share (the “FTAC Class A Common Stock”) issued and outstanding as of immediately prior to the FTAC Effective Time (other than treasury shares, shares held by FTAC or any of its subsidiaries, and shares of FTAC Class A Common Stock in respect of which redemption rights were validly exercised and not withdrawn) was automatically cancelled and converted into the right to receive one share of Class A Common Stock, par value $0.0001 per share, of Alight (the “Alight Class A Common Stock”) and (ii) all of the shares of FTAC’s Class B common stock, par value $0.0001 per share (the “FTAC Class B Common Stock”) issued and outstanding as of immediately prior to the FTAC Effective Time (after giving effect to the forfeiture by each holder of FTAC Class B Common Stock of 10% of their respective shares of FTAC Class B Common Stock pursuant to the Sponsor Agreement) were automatically cancelled and converted into, in the aggregate, 23,287,500 shares of Alight Class A Common Stock, with each former holder of a share of FTAC Class B Common Stock entitled to receive its applicable pro rata share of such consideration.
At the FTAC Effective Time, each FTAC warrant that was outstanding immediately prior to the FTAC Effective Time, each of which entitled the holder thereof to purchase one share of FTAC Class A Common Stock at a price of $11.50 per share (each, an “FTAC Warrant”) was, pursuant to the Business Combination Agreement and in accordance with the Warrant Agreement and the Warrant Assumption Agreement, automatically and irrevocably modified and exchanged for a warrant to purchase the same number of share(s) of Alight Class A Common Stock on the same terms and otherwise pursuant to the Warrant Agreement, as assumed by Alight (such warrants, the “Converted FTAC Warrants”).
In connection with the consummation of the Business Combination, on the Closing Date, but prior to the FTAC Effective Time, the FTAC Warrants held by Trasimene Capital FT, LP and Bilcar FT, LP (collectively, the “Sponsors”) were transferred to FTAC in exchange for a number of shares of FTAC’s newly created Class C common stock, par value $0.0001 per share (the “FTAC Class C Common Stock”) equal to the number of FTAC Warrants held by each of the Sponsors. At the FTAC Effective Time, pursuant to the Business Combination Agreement, each share of FTAC Class C Common Stock was converted into a share of Class C common stock of the FTAC Surviving Corporation. Each of the Sponsors immediately thereafter transferred and contributed such shares of Class C common stock to Alight Holdings in exchange for an equal number of Class C Units of Alight Holdings. The Class C Units will be exchangeable for a number of shares of Alight Class A Common Stock or cash, as determined by Alight, beginning upon the expiration of the lock-up period applicable to the Sponsors and ending on July 2, 2026.
Consideration Paid to Tempo Unitholders and Equityholders of the Tempo Blockers
Pursuant to the terms of the Business Combination Agreement, the aggregate consideration payable in the Business Combination to the holders of units of Tempo and the holders of equity interests in the Tempo Blockers was: (i) approximately $1.016 billion in cash, (ii) a number of shares of Alight Class A Common Stock and Class A Units of Alight Holdings (together with an equal number of shares of Class V common stock, par value $0.0001 per share, of Alight (the “Alight Class V Common Stock”)) in the aggregate equal to 226,663,750, (iii) a number of shares of Class B-1 common stock, par value $0.0001 per share, of Alight (the “Alight Class B-1 Common Stock”) and Class B-1 Units of Alight Holdings in the aggregate equal to 7,500,000 and (iv) a number of shares of Class B-2 common stock, par value $0.0001 per share, of Alight (the “Alight Class B-2 Common Stock”) and Class B-2 Units of Alight Holdings in the aggregate equal to 7,500,000, which consideration was allocated among such holders pursuant to the Allocation Schedule provided by Tempo pursuant to the Business Combination Agreement. In addition, holders of
units of Tempo and equity interests in the Tempo Blockers (other than holders of units of Tempo that were unvested as of immediately prior to the Business Combination and that did not vest in connection with the Business Combination, in respect of such unvested units) were issued, in the aggregate, (i) 7,821,092 shares of Alight’s Class Z-A common stock and Class Z-A Units of Alight Holdings, (ii) 425,208 shares of Class Z-B-1 common stock and Class Z-B-1 Units of Alight Holdings, and (iii) 425,208 shares of Class Z-B-2 common stock and Class Z-B-2 Units, which consideration equals the aggregate amount of shares of Alight Class A Common Stock, Alight Class B-1 Common Stock and Alight Class B-2 Common Stock, respectively that were issued in respect of such unvested units.
The shares of Alight Class B-1 Common Stock and Alight Class B-2 Common Stock will automatically convert into and be exchanged for shares of Alight Class A Common Stock (together with the payment of a dividend catch-up payment) upon the satisfaction of vesting conditions tied to the stock price of the Alight Class A Common Stock (or in connection with a change of control or liquidation of Alight that implies such a stock price). In addition, the Class A Units of Alight Holdings are exchangeable for shares of Alight Class A Common Stock on a one-for-one basis (or, at Alight’s election, an amount in cash), together with the cancellation of an equal number of shares of Alight Class V Common Stock, subject to certain anti-dilution adjustments.
The description of the Business Combination set forth above does not purport to be complete and is qualified in its entirety by reference to the Business Combination Agreement, which is attached as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated by reference herein. For a description of the terms of the Alight securities issued in connection with the Business Combination as well as the terms of the Alight Holdings Operating Agreement, which governs the rights, powers and preferences of the Units of Alight Holdings, see the sections of the Definitive Proxy/Prospectus titled “Description of the Company’s Securities” and “Proposal No. 1 - The Business Combination Proposal—Certain Agreements Related to the Business Combination—The Alight Holdings Operating Agreement”.
Item 3.01. |
Notice of Delisting |
The information set forth in the Introductory Note and Items 1.01 and 2.01 of this Current Report on Form 8-K are incorporated by reference into this Item 3.01.
In connection with the Business Combination, on July 2, 2021, FTAC notified the New York Stock Exchange (the “NYSE”) of the consummation of the FTAC Merger and requested that (i) the NYSE suspend trading of the FTAC Class A Common Stock, the FTAC Warrants and the units of FTAC (the “FTAC Securities”) on the NYSE effective as of the close of trading on July 2, 2021 and (ii) file with the SEC a Notification of Removal from Listing and/or Registration on Form 25 to report that the FTAC Securities are no longer listed on the NYSE and to apply for the deregistration thereof under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). FTAC intends to file a certification on Form 15 with the SEC to deregister the FTAC Securities and suspend FTAC’s reporting obligations under Sections 13 and 15(d) of the Exchange Act.
Item 3.02. |
Unregistered Sales of Equity Securities |
The information set forth in the Introductory Note and Item 2.01 of this Current Report on Form 8-K, including with respect to the issuance of shares of FTAC Class C Common Stock to the Sponsors, is incorporated by reference into this Item 3.02.
Immediately prior to the FTAC Effective Time, (i) pursuant to that certain Forward Purchase Agreement, dated as of May 8, 2020, by and between FTAC and Cannae Holdings, Inc., a Delaware corporation (“Cannae Holdings”), as assigned by Cannae Holdings to Cannae Holdings, LLC, a Delaware limited liability company and wholly owned subsidiary of Cannae Holdings (“Cannae”), by that certain Assignment and Assumption Agreement, dated as of January 25, 2021, by and between Cannae Holdings and Cannae (the “Cannae Forward Purchase Agreement”), Cannae purchased from FTAC, and FTAC issued to Cannae, 15,000,000 shares of FTAC Class A Common Stock and 5,000,000 FTAC Warrants for an aggregate purchase price of $150.0 million and (ii) pursuant to that certain Forward Purchase Agreement, dated as of May 8, 2020 (the “THL Forward Purchase Agreement”), by and between FTAC and THL FTAC LLC, a Delaware limited liability company (“THL”), THL purchased from FTAC, and
FTAC issued to THL, 15,000,000 shares of FTAC Class A Common Stock and 5,000,000 FTAC Warrants for an aggregate purchase price of $150.0 million. Such proceeds formed a portion of the consideration used for the completion of the Business Combination.
The foregoing description of the Forward Purchase Agreements does not purport to be complete and is subject, and qualified in its entirety by reference, to the full text of the Forward Purchase Agreements, which are attached as Exhibits 10.10 and 10.11, respectively, to FTAC’s Registration Statement on Form S-1/A, filed with the SEC on May 18, 2020 and incorporated by reference herein.
Item 3.03. |
Material Modification to Rights of Security Holders |
The information set forth in the Introductory Note and in Items 1.01, 2.01, 3.01, 3.02 and 5.03 of this Current Report on Form 8-K are incorporated by reference into this Item 3.03.
Item 5.01. |
Changes in Control of Registrant |
The information set forth in the Introductory Note and in Items 2.01, 3.01 and 5.03 of this Current Report on Form 8-K are incorporated by reference into this Item 5.01.
As a result of the consummation of the Business Combination, including the FTAC Merger, on July 2, 2021, a change in control of FTAC occurred and FTAC became a wholly owned subsidiary of Alight.
Item 5.02. |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
The information set forth in the Introductory Note and in Item 2.01 and Item 5.01 of this Current Report on Form 8-K are incorporated by reference into this Item 5.02.
As of the FTAC Effective Time, each of Richard N. Massey, Douglas K. Ammerman, Hugh R. Harris and Frank R. Martire, Jr. voluntarily resigned from his position as a member of FTAC’s board of directors and from any committee thereof. As of immediately following the FTAC Effective Time, each of Stephan D. Scholl, Katie J. Rooney and Paulette R. Dodson became the directors of FTAC, with each to hold office until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal.
As of the FTAC Effective Time, each of Richard N. Massey, David W. Ducommun, Bryan D. Coy and Michael L. Gravelle resigned as an officer of FTAC. As of immediately following the FTAC Effective Time, each of the following individuals became the executive officers of FTAC, in each case to hold such positions until their successors have been duly elected and qualified, or until their earlier death, resignation or removal:
Name |
Position |
|
Stephan D. Scholl | Chief Executive Officer | |
Cathinka E. Wahlstrom | President & Chief Commercial Officer | |
Katie J. Rooney | Chief Financial Officer | |
Colin F. Brennan | Chief Product Strategy & Services Officer | |
Gregory R. Goff | Chief Product and Technology Officer | |
Cesar Jelvez | Chief Customer Experience Officer | |
Dinesh V. Tulsiani | Chief Strategy Officer | |
Ed J. Auriemma | Chief Operations Officer | |
Paulette R. Dodson | General Counsel & Corporate Secretary | |
Michael J. Rogers | Chief Human Resources Officer |
Item 5.03. |
Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year |
On July 2, 2021, in connection with the completion of the Business Combination and as previously approved by FTAC’s stockholders at the special meeting of FTAC stockholders held on June 30, 2021, the certificate of incorporation of FTAC was amended and restated in in its entirety, to, among other things, authorize 30,000,000 shares of FTAC Class C Common Stock. A copy of the Third Amended and Restated Certificate of Incorporation of FTAC (the “Third Amended and Restated Charter”) is attached hereto as Exhibit 3.1 and is incorporated by reference herein.
Pursuant to the Business Combination Agreement, at the FTAC Effective Time, the Third Amended and Restated Charter and the bylaws of FTAC were amended and restated in their entirety to reflect FTAC’s status as a wholly owned subsidiary of Alight and changed its name to Alight Group, Inc. Copies of the Fourth Amended and Restated Certificate of Incorporation of Alight Group, Inc. and the amended and restated bylaws are filed as Exhibits 3.2 and 3.3, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.
Item 8.01. |
Other Events |
On July 6, 2021, FTAC and Alight issued a joint press release announcing the closing of the Business Combination, a copy of which is filed as Exhibit 99.1 hereto and is incorporated herein by reference.
Item 9.01. |
Financial Statements and Exhibits |
(d) |
Exhibits. |
* |
Certain schedules and exhibits to this agreement have been omitted in accordance with Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished as a supplement to the SEC upon request. |
SIGNATURE
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.
Dated: July 8, 2021
Alight Group, Inc. | ||
By: |
/s/ Paulette R. Dodson |
|
Name: |
Paulette R. Dodson |
|
Title: |
General Counsel & Corporate Secretary |
Exhibit 3.1
THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
FOLEY TRASIMENE ACQUISITION CORP.
July 2, 2021
Foley Trasimene Acquisition Corp., a corporation organized and existing under the laws of the State of Delaware (the Corporation), DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the Corporation is Foley Trasimene Acquisition Corp.
2. The original name of the Corporation was Bill Acquisition Corp. The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on March 26, 2020 (the Original Certificate).
3. The Second Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on May 26, 2020 (the Second Amended and Restated Certificate).
3. This Third Amended and Restated Certificate of Incorporation (the Third Amended and Restated Certificate), which both restates and amends the provisions of the Second Amended and Restated Certificate, was duly adopted in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware, as amended from time to time (the DGCL). The Second Amended and Restated Certificate is being amended in connection with the transactions contemplated by that certain Amended and Restated Business Combination Agreement (as amended, supplemented, waived or otherwise modified from time to time, the Business Combination Agreement), dated as of April 29, 2021, by and among the Corporation, Tempo Holding Company, LLC, a Delaware limited liability company (Tempo), Alight, Inc., a Delaware corporation, and the other parties thereto.
4. The text of the Second Amended and Restated Certificate is hereby restated and amended in its entirety to read as follows:
FIRST. The name of the Corporation is Foley Trasimene Acquisition Corp.
SECOND. The address of the corporations registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
THIRD. The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware.
FOURTH. The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized to issue is 471,000,000, consisting of (a) 470,000,000 shares of common stock (the Common Stock), including three separate series of Common Stock consisting of (i) 400,000,000 shares of Class A Common Stock (the Class A Common Stock), (ii) 40,000,000 shares of Class B Common Stock (the Class B Common Stock) and (iii) 30,000,000 shares of Class C Common Stock (the Class C Common Stock), and (b) 1,000,000 shares of preferred stock (the Preferred Stock).
FIFTH. The Preferred Stock may be issued in one or more series from time to time, with each such series to consist of such number of shares and to have such voting powers, full or limited, or no voting powers, and such designations, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions thereof, as shall be stated in the resolution or resolutions providing for the issuance of such series adopted by the board of directors of the Corporation (the Board) and included in a certificate of designation (a Preferred Stock Designation) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority, to the full extent now or hereafter provided by law, to adopt any such resolution or resolutions.
SIXTH. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the outstanding shares of Common Stock, without a vote of the holders of the Preferred Stock, or any series thereof, unless a vote of any such holders of Preferred Stock is required pursuant to another provision of this Third Amended and Restated Certificate, including any Preferred Stock Designation.
SEVENTH. Common Stock Voting. (a) Except as otherwise required by law or this Third Amended and Restated Certificate (including any Preferred Stock Designation), the holders of the Common Stock shall exclusively possess all voting power with respect to the Corporation.
(b) The holders of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders on which the holders of the Common Stock are entitled to vote.
(c) Except as otherwise required by law or this Third Amended and Restated Certificate (including any Preferred Stock Designation), at any annual or special meeting of the stockholders of the Corporation, holders of the Class A Common Stock, holders of the Class B Common Stock and holders of the Class C Common Stock, voting together as a single class, shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders. Notwithstanding the foregoing, except as otherwise required by law or this Third Amended and Restated Certificate (including a Preferred Stock Designation), holders of shares of any series of Common Stock shall not be entitled to vote on any amendment to this Third Amended and Restated Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock or other series of Common Stock if the holders of such affected series of Preferred Stock or Common Stock, as applicable, are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Third Amended and Restated Certificate (including any Preferred Stock Designation).
EIGHTH. Class B Common Stock. The holders of Class B Common Stock shall be entitled to receive the consideration set forth in the Business Combination Agreement in connection with the consummation of the transactions contemplated thereby.
NINTH. Subject to the rights of the holders of Preferred Stock, the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor and shall share equally on a per share basis in such dividends and distributions subject to such rights of the holders of Preferred Stock.
TENTH. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, and subject to the rights of the holders of Preferred Stock in respect thereof, the holders of shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by them.
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ELEVENTH. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to acquire from the Corporation any shares of its capital stock of any class or classes, with such rights, warrants and options to be evidenced by or in instrument(s) approved by the Board. The Board is empowered to set the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be received for any shares of capital stock issuable upon exercise thereof may not be less than the par value thereof.
TWELFTH. The incorporator of the Corporation is Michael L. Gravelle, whose mailing address is 1701 Village Center Circle, Las Vegas, NV 89134.
THIRTEENTH. Number, Election and Term of the Board. (a) The number of directors of the Corporation shall be fixed from time to time in the manner provided in the Amended and Restated Bylaws of the Corporation (Bylaws).
(b) Subject to Paragraph SIXTEENTH hereof, commencing at the first annual meeting of the stockholders, and at each annual meeting of the stockholders thereafter, directors elected to succeed those directors whose terms expire shall be elected for a term of office to expire at the next annual meeting of the stockholders after their election.
(c) Subject to Paragraph SIXTEENTH hereof, a director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor has been elected and qualified, subject, however, to such directors earlier death, resignation, retirement, disqualification or removal.
(d) Unless, and except to the extent that, the Bylaws shall so require, the election of directors of the corporation need not be by written ballot.
FOURTEENTH. Subject to Paragraph SIXTEENTH hereof, newly created directorships resulting from an increase in the number of directors and any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal or other cause may be filled solely and exclusively by a majority vote of the remaining directors then in office, even if less than a quorum, or by a sole remaining director (and not by stockholders), and any director so chosen shall hold office for the remainder of the full term of the director to which the new directorship was added or in which the vacancy occurred and until his or her successor has been elected and qualified, subject, however, to such directors earlier death, resignation, retirement, disqualification or removal.
FIFTEENTH. Subject to Paragraph SIXTEENTH hereof and except as otherwise required by this Third Amended and Restated Certificate (including as set forth on Paragraph THIRTY-SECOND hereof), any or all of the directors may be removed from office at any time, but only for cause and only by the affirmative vote of holders of a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
SIXTEENTH. Notwithstanding any other provision of Paragraphs THIRTEENTH, FOURTEENTH and FIFTEENTH, and except as otherwise required by law, whenever the holders of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors, the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the terms of such series of the Preferred Stock as set forth in this Third Amended and Restated Certificate (including any Preferred Stock Designation) and such directors shall not be included in any of the classes created pursuant to Paragraphs THIRTEENTH, FOURTEENTH and FIFTEENTH, unless expressly provided by such terms.
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SEVENTEENTH. In furtherance and not in limitation of the powers conferred by law, subject to any limitations contained in this Third Amended and Restated Certificate, the Board is expressly authorized to make, alter and repeal the bylaws of the corporation, but any bylaws adopted by the Board may be adopted, amended, altered or repealed by the stockholders entitled to vote thereon; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by law or by this Third Amended and Restated Certificate (including any Preferred Stock Designation), the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the bylaws; and provided further, however, that no bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such bylaws had not been adopted.
EIGHTEENTH. To the maximum extent permitted under the DGCL, the Corporation renounces any interest or expectancy of the Corporation in, or in being offered an opportunity to participate in, business opportunities that are from time to time presented to its directors who are not employees of the Corporation or any of its subsidiaries (Outside Directors), other than any such opportunity expressly presented to an Outside Director in such Outside Directors capacity as a director of the Corporation; and no such Outside Director shall be liable to the Corporation or its stockholders for breach of any fiduciary or other duty by reason of the fact that such Outside Director personally or on behalf of any other person pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation or its subsidiaries. For purposes of this paragraph EIGHTEENTH, a director shall not be deemed to be an employee of the Corporation solely by reason of holding such position. No amendment or repeal of this paragraph EIGHTEENTH shall apply to or have any effect on the liability or alleged liability of any Outside Director for or with respect to business opportunities of which such Outside Director becomes aware prior to such amendment or repeal. Any person purchasing or otherwise acquiring any interest in any capital stock of the Corporation shall be deemed to have notice of, and to have consented to the provisions of this paragraph EIGHTEENTH.
NINETEENTH. Subject to the rights, if any, of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law, special meetings of stockholders of the Corporation may be called only by the Chairman of the Board, Chief Executive Officer of the Corporation, or the Board pursuant to a resolution adopted by a majority of the Board, and the ability of the stockholders to call a special meeting is hereby specifically denied. Except as provided in the foregoing sentence, special meetings of stockholders may not be called by another person or persons.
TWENTIETH. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.
TWENTY-FIRST. Except as may be otherwise provided for or fixed pursuant to this Third Amended and Restated Certificate (including any Preferred Stock Designation) relating to the rights of the holders of any outstanding series of Preferred Stock, subsequent to the consummation of the Corporations initial public offering of securities (the Offering), any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such stockholders and may not be effected by written consent of the stockholders.
TWENTY-SECOND. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for any liability (i) for any breach of the directors duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of
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law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Any repeal or modification of this paragraph TWENTY-SECOND shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.
TWENTY-THIRD. Indemnification and Advancement of Expenses. (a) To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a proceeding) by reason of the fact that he or she 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 partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an indemnitee), 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, without limitation, attorneys fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this paragraph TWENTY-THIRD or otherwise. The rights to indemnification and advancement of expenses conferred by this paragraph TWENTY-THIRD shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this paragraph TWENTY-THIRD, except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.
(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by this paragraph TWENTY-THIRD shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Third Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.
(c) Any repeal or amendment of this paragraph TWENTY-THIRD by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Third Amended and Restated Certificate inconsistent with this paragraph TWENTY-THIRD, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
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(d) This paragraph TWENTY-THIRD shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.
TWENTY-FOURTH. Business Combination Requirements. (a) The provisions of this paragraph TWENTY-FOURTH and the paragraphs TWENTY-FIFTH, TWENTY-SIXTH, TWENTY-SEVENTH, TWENTY-EIGHTH, TWENTY-NINTH, THIRTIETH, THIRTY-FIRST and THIRTY-SECOND shall apply during the period commencing upon the effectiveness of the Corporations Second Amended and Restated Certificate and terminating upon the consummation of the Corporations initial merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses (the Business Combination) and no amendment to this paragraph TWENTY-FOURTH and the paragraphs TWENTY-FIFTH, TWENTY-SIXTH, TWENTY-SEVENTH, TWENTY-EIGHTH, TWENTY-NINTH, THIRTIETH, THIRTY-FIRST and THIRTY-SECOND shall be effective prior to the consummation of the initial Business Combination unless approved by the affirmative vote of the holders of at least sixty-five percent (65%) of all then outstanding shares of the Common Stock.
(b) Immediately after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds of any exercise of the underwriters over-allotment option) and certain other amounts specified in the Corporations registration statement on Form S-1, as initially filed with the Securities and Exchange Commission (the SEC) on May 8, 2020, as amended (the Registration Statement), were deposited in a trust account (the Trust Account), established for the benefit of the Public Stockholders (as defined below) pursuant to a trust agreement described in the Registration Statement. Except for the withdrawal of interest to pay the Corporations taxes, none of the funds held in the Trust Account (including the interest earned on the funds held in the Trust Account) will be released from the Trust Account until the earliest to occur of (i) the completion of the initial Business Combination, (ii) the redemption of shares in connection with a vote seeking to amend any provisions of this Third Amended and Restated Certificate as described in paragraph THIRTIETH, or (iii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to complete its initial Business Combination within 24 months from the closing of the Offering, subject to applicable law. Holders of shares of the Common Stock included as part of the units sold in the Offering (the Offering Shares) (whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering and whether or not such holders are Trasimene Capital Management FT, LP or Bilcar FT, LP (together, the Sponsors) or officers or directors of the Corporation, or affiliates of any of the foregoing) are referred to herein as Public Stockholders.
TWENTY-FIFTH. Redemption Rights. (a) Prior to the consummation of the initial Business Combination, the Corporation shall provide all holders of Offering Shares with the opportunity to have their Offering Shares redeemed, out of funds legally available therefor, upon the consummation of the initial Business Combination pursuant to, and subject to the limitations of, this paragraph TWENTY-FIFTH, Sections (b) and (c) (such rights of such holders to have their Offering Shares redeemed pursuant to such Sections, the Redemption Rights) hereof for cash equal to the applicable redemption price per share determined in accordance with this paragraph TWENTY-FIFTH, Section (b) hereof (the Redemption Price); provided, however, that the Corporation shall not redeem or repurchase Offering Shares to the extent that such redemption would result in the Corporations failure to have net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) under the Securities Exchange Act of 1934, as amended (the Exchange Act) (or any successor rule)) in excess of $5 million or any greater net tangible asset or cash requirement which may be contained in the agreement relating to the initial Business Combination (such limitation hereinafter called the Redemption Limitation). Notwithstanding anything to the contrary contained in this Third Amended and Restated Certificate, there shall be no Redemption Rights or liquidating distributions with respect to any warrant issued pursuant to the Offering.
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(b) If the Corporation offers to redeem the Offering Shares other than in conjunction with a stockholder vote on an initial Business Combination with a proxy solicitation pursuant to Regulation 14A under the Exchange Act (or any successor rules or regulations) and filing proxy materials with the SEC, the Corporation shall offer to redeem the Offering Shares upon the consummation of the initial Business Combination, subject to lawfully available funds therefor, in accordance with the provisions of this paragraph TWENTY-FIFTH, Section (a) hereof pursuant to a tender offer in accordance with Rule 13e-4 and Regulation 14E under the Exchange Act (or any successor rule or regulation) (such rules and regulations hereinafter called the Tender Offer Rules) which it shall commence prior to the consummation of the initial Business Combination and shall file tender offer documents with the SEC prior to the consummation of the initial Business Combination that contain substantially the same financial and other information about the initial Business Combination and the Redemption Rights as is required under Regulation 14A under the Exchange Act (or any successor rule or regulation) (such rules and regulations hereinafter called the Proxy Solicitation Rules), even if such information is not required under the Tender Offer Rules; provided, however, that if a stockholder vote is required by law to approve the proposed initial Business Combination, or the Corporation decides to submit the proposed initial Business Combination to the stockholders for their approval for business or other legal reasons, the Corporation shall offer to redeem the Offering Shares, subject to lawfully available funds therefor, in accordance with the provisions of this paragraph TWENTY-FIFTH, Section (a) hereof in conjunction with a proxy solicitation pursuant to the Proxy Solicitation Rules (and not the Tender Offer Rules) at a price per share equal to the Redemption Price calculated in accordance with the following provisions of this paragraph TWENTY-FIFTH, Section (b). In the event that the Corporation offers to redeem the Offering Shares pursuant to a tender offer in accordance with the Tender Offer Rules, the Redemption Price per share of the Common Stock payable to holders of the Offering Shares tendering their Offering Shares pursuant to such tender offer shall be equal to the quotient obtained by dividing: (i) the aggregate amount on deposit in the Trust Account as of two business days prior to the consummation of the initial Business Combination, including interest not previously released to the Corporation to pay taxes, by (ii) the total number of then outstanding Offering Shares. If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on the proposed initial Business Combination pursuant to a proxy solicitation, the Redemption Price per share of the Common Stock payable to holders of the Offering Shares exercising their Redemption Rights shall be equal to the quotient obtained by dividing (a) the aggregate amount on deposit in the Trust Account as of two business days prior to the consummation of the initial Business Combination, including interest not previously released to the Corporation to pay taxes, by (b) the total number of then outstanding Offering Shares.
(c) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an initial Business Combination pursuant to a proxy solicitation, a Public Stockholder, together with any affiliate of such stockholder or any other person with whom such stockholder is acting in concert or as a group (as defined under Section 13(d)(3) of the Exchange Act), shall be restricted from seeking Redemption Rights with respect to more than an aggregate of 15% of the Offering Shares.
(d) In the event that the Corporation has not consummated an initial Business Combination within 24 months from the closing of the Offering, the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Offering Shares in consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (A) the aggregate amount then on deposit in the Trust Account, including interest not previously released to the Corporation to pay taxes (less up to $100,000 of such net interest to pay dissolution expenses), by (B) the total number of then outstanding Offering Shares, which redemption will completely extinguish rights of the Public Stockholders (including the right to receive further liquidating distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the remaining stockholders and the Board in accordance with applicable law, dissolve and liquidate, subject in each case to the Corporations obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.
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(e) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an initial Business Combination, the Corporation shall consummate the proposed initial Business Combination only if (i) such initial Business Combination is approved by the affirmative vote of the holders of a majority of the shares of the Common Stock that are voted at a stockholder meeting held to consider such initial Business Combination (or, if required by the applicable stock exchange rules then in effect, such as the New York Stock Exchange, the affirmative vote of the holders of a majority of the shares held by Public Stockholders that are voted at a stockholder meeting held to consider such initial Business Combination) and (ii) the Redemption Limitation is not exceeded.
(f) If the Corporation conducts a tender offer pursuant to this paragraph TWENTY-FIFTH, Section (b), the Corporation shall consummate the proposed initial Business Combination only if the Redemption Limitation is not exceeded.
TWENTY-SIXTH. Distributions from the Trust Account. (a) A Public Stockholder shall be entitled to receive funds from the Trust Account only as provided in paragraph TWENTY-FIFTH, Sections (a), (b) and (d) or paragraph TWENTY-NINTH hereof. In no other circumstances shall a Public Stockholder have any right or interest of any kind in or to distributions from the Trust Account, and no stockholder other than a Public Stockholder shall have any interest in or to the Trust Account.
(b) Each Public Stockholder that does not exercise its Redemption Rights shall retain its interest in the Corporation and shall be deemed to have given its consent to the release of the remaining funds in the Trust Account to the Corporation, and following payment to any Public Stockholders exercising their Redemption Rights, the remaining funds in the Trust Account shall be released to the Corporation.
(c) The exercise by a Public Stockholder of the Redemption Rights shall be conditioned on such Public Stockholder following the specific procedures for redemptions set forth by the Corporation in any applicable tender offer or proxy materials sent to the Public Stockholders relating to the proposed initial Business Combination. Payment of the amounts necessary to satisfy the Redemption Rights properly exercised shall be made as promptly as practical after the consummation of the initial Business Combination.
TWENTY-SEVENTH. Prior to the consummation of the Corporations initial Business Combination, the Corporation shall not issue any additional shares of capital stock of the Corporation that would entitle the holders thereof to receive funds from the Trust Account or vote on any initial Business Combination.
TWENTY-EIGHTH. In the event the Corporation enters into an initial Business Combination with a target business that is affiliated with the Sponsors, or the directors or officers of the Corporation, the Corporation, or a committee of the independent directors of the Corporation, shall obtain an opinion from an independent accounting firm or an independent investment banking firm that is a member of the Financial Industry Regulatory Authority that such Business Combination is fair to the Corporation from a financial point of view.
TWENTY-NINTH. The Corporation shall not enter into an initial Business Combination with another blank check company or a similar company with nominal operations.
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THIRTIETH. If, in accordance with paragraph TWENTY-FOURTH, Section (a), any amendment is made to this Third Amended and Restated Certificate of Incorporation (a) to modify the substance or timing of the Corporations obligation to allow redemption in connection with its initial Business Combination or to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination within 24 months from the date of the closing of the Offering or (b) with respect to any other provisions of this Third Amended and Restated Certificate of Incorporation relating to stockholders rights or pre-initial Business Combination activity, the Public Stockholders shall be provided with the opportunity to redeem their Offering Shares upon the 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 not previously released to the Corporation to pay taxes, divided by the number of then outstanding Offering Shares. The Corporations ability to provide such opportunity is subject to the Redemption Limitation.
THIRTY-FIRST. The Corporations initial Business Combination must occur with one or more target businesses that together have a fair market value of at least 80% of the assets held in the Trust Account (excluding any deferred underwriting commissions and taxes payable on the interest earned on the Trust Account) at the time the Corporation signs a definitive agreement in connection with the initial Business Combination.
THIRTY-SECOND. Notwithstanding any other provision in this Third Amended and Restated Certificate, prior to the closing of the initial Business Combination, the holders of Class B Common Stock shall have the exclusive right to elect and remove any director, and the holders of Class A Common Stock and Class C Common Stock shall have no right to vote on the election or removal of any director. This paragraph THIRTY-SECOND may only be amended by a resolution passed by a majority of holders of at least ninety percent (90%) of the outstanding shares of Class B Common Stock entitled to vote thereon.
THIRTY-THIRD. The doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to the Corporation or any of its officers or directors, or any of their respective affiliates, in circumstances where the application of any such doctrine would conflict with any fiduciary duties or contractual obligations they may have as of the date of this Third Amended and Restated Certificate or in the future. In addition to the foregoing, the doctrine of corporate opportunity shall not apply to any other corporate opportunity with respect to any of the directors or officers of the Corporation unless such corporate opportunity is offered to such person solely in his or her capacity as a director or officer of the Corporation and such opportunity is one the Corporation is legally and contractually permitted to undertake and would otherwise be reasonable for the Corporation to pursue.
THIRTY-FOURTH. The Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Third Amended and Restated Certificate (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force that may be added or inserted, in the manner now or hereafter prescribed by this Third Amended and Restated Certificate and the DGCL; and, except as set forth in paragraphs, TWENTY-SECOND and TWENTY-THIRD, all rights, preferences and privileges of whatever nature herein conferred upon stockholders, directors or any other persons by and pursuant to this Third Amended and Restated Certificate in its present form or as hereafter amended are granted subject to the right reserved in this paragraph THIRTY-FOURTH; provided, however, that paragraphs TWENTY-FOURTH, TWENTY-FIFTH, TWENTY-SIXTH, TWENTY-SEVENTH, TWENTY-EIGHTH, TWENTY-NINTH, THIRTIETH, THIRTY-FIRST and THIRTY-SECOND of this Third Amended and Restated Certificate may be amended only as provided therein.
[Signature page follows]
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IN WITNESS WHEREOF, Foley Trasimene Acquisition Corp. has caused this Third Amended and Restated Certificate to be duly executed and acknowledged in its name and on its behalf by an authorized officer as of the date first set forth above.
FOLEY TRASIMENE ACQUISITION CORP. | ||
By: |
/s/ Michael L. Gravelle |
Name: | Michael L. Gravelle | |
Title: | General Counsel and | |
Corporate Secretary |
[Signature page to Third Amended and Restated Certificate of Incorporation]
Exhibit 3.2
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ALIGHT GROUP, INC.
FIRST. The name of the corporation is Alight Group, Inc.
SECOND. The address of the corporations registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, DE 19801, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
THIRD. The purpose of the corporation is 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).
FOURTH. The total number of shares of all classes of capital stock that the corporation is authorized to issue is 30,001,000. All such shares are to be common stock, with a par value of $0.0001 per share (the Common Stock), consisting of (i) 1,000 shares of Class A Common Stock and (ii) 30,000,000 shares of Class C Common Stock. Except as required by applicable law, (x) the holders of Class A Common Stock, as such, shall have exclusive voting power on all matters on which stockholders are entitled to vote and shall be entitled to one vote for each share of Class A Common Stock held of record by such holder and (y) no holder of Class C Common Stock, as such, shall be entitled to any voting rights with respect to such Class C Common Stock.
FIFTH. Unless, and except to the extent that, the bylaws of the corporation shall so require, the election of directors of the corporation need not be by written ballot.
SIXTH. In furtherance and not in limitation of the powers conferred by law, subject to any limitations contained in this Certificate of Incorporation, the board of directors of the corporation (the Board) is expressly authorized to make, alter and repeal the bylaws of the corporation, but any bylaws adopted by the Board may be amended or repealed by the stockholders entitled to vote thereon.
SEVENTH. A director of the corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for any liability (i) for any breach of the directors duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Neither (x) any amendment, modification or repeal of this paragraph SEVENTH nor (y) the adoption of any provision of this Certificate of Incorporation or amendment hereto that is inconsistent with the foregoing sentence of this paragraph SEVENTH shall eliminate, reduce or otherwise adversely affect any right or protection of a director of the corporation in respect of any matter occurring, or any cause of action, suit or claim that, but for the foregoing sentence, would accrue or arise, prior to such amendment, repeal, modification or adoption.
EIGHTH. (a) To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the corporation shall indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a proceeding) by reason of the fact that he or she 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 partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an indemnitee), 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, without limitation, attorneys fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this paragraph EIGHTH or otherwise. The rights to indemnification and advancement of expenses conferred by this paragraph EIGHTH shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this paragraph EIGHTH, except for proceedings to enforce rights to indemnification and advancement of expenses, the corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.
(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by this paragraph EIGHTH shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Certificate of Incorporation, the bylaws of the corporation, an agreement, vote of stockholders or disinterested directors, or otherwise.
(c) Any repeal or amendment of this paragraph EIGHTH by the stockholders of the corporation or by changes in law, or the adoption of any other provision of this Certificate of Incorporation inconsistent with this paragraph EIGHTH, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
(d) This paragraph EIGHTH shall not limit the right of the corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.
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Exhibit 3.3
SECOND AMENDED AND RESTATED
BYLAWS
OF
ALIGHT GROUP, INC.
July 2, 2021
ARTICLE I
OFFICES
Section 1. Registered Office. The registered office of Alight Group, Inc. (the Corporation) shall be in the State of Delaware.
Section 2. Other Offices. The Corporation may also have offices at such other places both within and without the State of Delaware as the board of directors of the Corporation (the Board of Directors) may from time to time determine or the business of the Corporation may require.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Time and Place of Meetings. All meetings of the shareholders shall be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof.
Section 2. Annual Meetings. Annual meetings of shareholders shall be held on the first Tuesday of April, if not a legal holiday, and if a legal holiday, then on the next business day following, or at such other date as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. At the annual meeting, the shareholders entitled to vote thereat shall elect a Board of Directors and transact such other business as may properly be brought before the meeting.
Section 3. Special Meetings. Special meetings of the shareholders, unless otherwise prescribed by statute or provided by the certificate of incorporation of the Corporation (the Certificate of Incorporation) or these bylaws, may be called by the President or the Board of Directors or by the holders of at least 10% of all shares entitled to vote at the meeting. Business conducted at any special meeting shall be confined to the purpose or purposes described in the notice thereof.
Section 4. Notice. Written or printed notice stating the place, day and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than 10 calendar days (20 days in the case of a meeting to approve a plan of merger or exchange) nor more than 60 days before the date of the meeting, either personally or by mail, by or at the direction of the President, the Secretary or the officer or other person calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his or its address as it appears on the share transfer records of the Corporation, with postage prepaid.
Section 5. Quorum. A quorum shall be present at a meeting of shareholders if the holder or holders of a majority of the shares entitled to vote are present in person, represented by duly authorized representative in the case of a corporation or other legal entity or represented by proxy, unless otherwise provided in the Certificate of Incorporation. Unless otherwise provided in the Certificate of Incorporation or these bylaws, once a quorum is present at a duly constituted meeting of shareholders, the shareholders present or represented at the meeting may conduct such business as may be properly brought before the meeting until it is adjourned, and the subsequent withdrawal from the meeting of any shareholder present or represented shall not affect the presence of a quorum at the meeting. Unless otherwise provided in the Certificate of Incorporation or these bylaws, the shareholders entitled to vote and present or represented at a meeting of shareholders at which a quorum is not present may adjourn the meeting until such time and to such place as may be determined by a vote of the holders of a majority of the shares represented at the meeting. At such adjourned meeting at which a quorum shall be present or represented, any business may be conducted which might have been conducted at the meeting as originally notified.
Section 6. Voting. With respect to any matter, other than the election of directors or a matter for which the affirmative vote of the holders of a specified portion of the shares is required by statute, the affirmative vote of the holders of a majority of the shares entitled to vote on that matter and represented at a meeting of shareholders at which a quorum is present shall be the act of the shareholders, unless otherwise provided in the Certificate of Incorporation or these bylaws. Unless otherwise provided in the Certificate of Incorporation of these bylaws, directors shall be elected by a plurality of the votes cast by the holders of shares entitled to vote in the election of directors at a meeting of shareholders at which a quorum is present.
Section 7. Method of Voting. Each outstanding share shall be entitled to one vote on each matter submitted to a vote at a meeting of shareholders, except to the extent that the Certificate of Incorporation provide for more or less than one vote per share or limit or deny voting rights to the holders of the shares of any class or series or as otherwise provided by statute. A shareholder may vote in person, by duly authorized representative in the case of a corporation or other legal entity or by proxy executed in writing by the shareholder or by his or its duly authorized attorney-in-fact. Each proxy shall be filed with the Secretary of the Corporation prior to the time of the meeting.
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Section 8. Action Without Meeting. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any meeting of the shareholders 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 have been signed by the holder or holders of all the shares entitled to vote with respect to the action that is the subject of the consent.
ARTICLE III
DIRECTORS
Section 1. Responsibilities. The powers of the Corporation shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of, its Board of Directors.
Section 2. Number; Term. The number of directors shall be no less than one (1) and no more than fourteen (14). The number of directors shall be fixed from time to time by the Board of Directors or by the shareholders at the annual or a special meeting. No decrease in the number of directors shall have the effect of shortening the term of an incumbent director. The directors shall be elected at the annual meeting of the shareholders, except as provided in Section 3 below. At each annual meeting, the holders of shares entitled to vote in the election of directors shall elect directors to hold office until the next succeeding annual meeting. Unless removed in accordance with the Certificate of Incorporation or this Section, each director elected shall hold office for the term for which he is elected and until his successor shall have been elected and qualified. Directors need not be residents of the State of Delaware or shareholders of the Corporation. At any meeting of shareholders called expressly for that purpose, any director or the entire Board of Directors may be removed, with or without cause, by the affirmative vote of the holder or holders of a majority of the shares then entitled to vote at an election of directors.
Section 3. Vacancies; Increases. Any vacancy occurring in the Board of Directors (by death, resignation, removal or otherwise) may be filled by election at an annual or special meeting of shareholders called for that purpose, by the affirmative vote of a majority of the remaining directors then in office, though less than a quorum, or by a sole remaining director. Each director elected to fill a vacancy shall be elected for the unexpired term of his predecessor in office. Any directorship to be filled by reason of an increase in the number of directors may be filled by election at an annual or special meeting of shareholders called for that purpose or by the Board of Directors for a term of office continuing only until the next election of one or more directors by the shareholders; provided, however, that the Board of Directors may not fill more than two such directorships during the period between any two successive annual meetings of shareholders.
Section 4. Place of Meetings. Meetings of the Board of Directors, regular or special, may be held either within or without the State of Delaware.
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Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held at such time and at such place as shall from time to time be determined by the Board of Directors. Regular meetings of the Board of Directors may be held without notice.
Section 6. Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board or by the President and shall be called by the Secretary on the written request of at least two directors. Written notice specifying the time and place of special meetings shall be given to each director at least three days before the date of the meeting. Such notice may, but need not, specify the purpose or purposes of the meeting.
Section 7. Quorum; Majority Vote. At all meetings, a majority of the number of the directors fixed in the manner provided in these bylaws shall constitute a quorum for the transaction of business unless a greater number is specifically required by statute or provided in the Certificate of Incorporation or these bylaws. The act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors, except as otherwise specifically required by statute or provided in the Certificate of Incorporation or these bylaws, in which case the express provision shall control. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 8. Minutes. The Board of Directors shall keep regular minutes of its proceedings. The minutes shall be placed in the minute book of the Corporation.
Section 9. Committees. The Board of Directors, by resolution adopted by a majority of the full Board of Directors, may designate from among its members an executive committee and one or more other committees, each of which shall be comprised of one or more members, and may designate one or more of its members as alternate members of any committee, who may, subject to any limitations imposed by the Board of Directors, replace absent or disqualified members, at any meeting of that committee. Any such committee, to the extent provided in such resolution or in the Certificate of Incorporation or these bylaws, shall have and may exercise all of the authority of the Board of Directors, except as otherwise provided by statute. The designation of such committee and the delegation thereto of authority shall not operate to relieve the Board of Directors, or any member thereof, of any responsibility imposed by law. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors.
Section 10. Committee Minutes. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required. Such minutes shall be place in the minute book of the Corporation.
Section 11. Action Without Meeting. Unless otherwise restricted by the Certificate of Incorporation or these bylaws, any action required or permitted to be taken at a meeting of the Board of Directors or any committee may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by all the members of the Board of Directors or committee, as the case may be. Such consent shall have the same force and effect as a unanimous vote at a meeting.
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ARTICLE IV
NOTICES
Section 1. Method. Whenever by statute, the Certificate of Incorporation, these bylaws or otherwise, notice is required to be given to a director or shareholder, and no provision is made as to how the notice shall be given, it shall not be construed to be personal notice, but any such notice may be given: (a) in writing, by mail, postage prepaid, addressed to the director at the last address known by the Corporation for such director or shareholder at the address appearing on the share transfer records of the Corporation, or (b) in any other method permitted by law. Any notice required or permitted to be given by mail shall be deemed given at the time when the same is deposited in the United States mail.
Section 2. Waiver. Whenever by statute, the Certificate of Incorporation or these bylaws, any notice is required to be given to a director or shareholder, a waiver thereof in writing, signed by the person or persons entitled to such notice, or in the case of a corporation or other legal entity by its duly authorized representative, whether before or after the time stated therein, shall be equivalent to the giving of such notice.
ARTICLE V
OFFICERS
Section 1. Number. The officers of the Corporation shall consist of a President and a Secretary, each of whom shall be elected by the Board of Directors. The Board of Directors may also elect such other officers as they deem necessary or desirable, including a Chairman of the Board, a Treasurer, a Controller and one or more Vice Presidents, Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers and Assistant Controllers. All officers of the Corporation shall hold office at the pleasure of the Board of Directors. The same person may, at the discretion of the Board of Directors, hold any two or more offices.
Section 2. Appointed Officers. The President or any Executive Vice President may appoint such officers and agents, other than the President and the Secretary, as he shall deem necessary or desirable, who shall hold their offices for such terms as the President or the Executive Vice President shall determine.
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Section 3. Removal. Any officer elected by the Board of Directors may be removed by the Board of Directors whenever in its judgment the best interests of the Corporation will be served thereby.
Section 4. Compensation. The compensation of all officers and agents of the Corporation who are also directors of the Corporation shall be fixed by the Board of Directors. The Board of Directors may delegate the power to fix the compensation of all other officers and agents of the Corporation to an officer of the Corporation.
Section 5. Duties. The officers of the Corporation, whether elected or appointed, shall have such authority and shall perform such duties as are customarily incident to their respective offices, or as may be specified from time to time by resolution of the Board of Directors regardless of whether such authority and duties are customarily incident to such office.
ARTICLE VI
CERTIFICATES REPRESENTING STOCK
Section 1. Certificates; Signatures. The shares of the Corporations stock may be certificated or uncertificated, as provided under the DGCL, and shall be entered in the books of the Corporation and registered as they are issued. Any certificates representing shares of stock shall be in such form as shall be approved by the Board of Directors. Every holder of stock represented by certificates and upon request every holder of uncertificated shares shall be entitled to have a certificate, signed by or in the name of the Corporation by any two authorized officers of the Corporation, representing the number of shares registered in certificate form. Any and all signatures on any such certificate may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. The name of the holder of record of the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the books of the Corporation.
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ARTICLE VII
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Each person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another corporation, partnership, joint venture, sole proprietorship, trust or other enterprise or employee benefit plan (including the heirs, executors, administrators or estate of such person) shall be indemnified by the Corporation to the fullest extent that a corporation is required or permitted to grant indemnification to such person under the Delaware General Corporation Law, as the same exists or may hereafter be amended. Reasonable expenses incurred by a director, officer, employee or agent of the Corporation who was, is or is threatened to be made a named defendant or respondent in a proceeding shall be paid or reimbursed by the Corporation, in advance of the final disposition of the proceeding, to the maximum extent permitted under Delaware law, as the same exists or may hereafter be amended. The right to indemnification under this Article shall be a contract right. In the event of the death of any person having a right of indemnification under this Article, such right will inure to the benefit of his or her heirs, executors, administrators and personal representatives. The rights under this Article will not be exclusive of any other right which any person may have or hereinafter acquire under any statute, bylaw, resolution of shareholders of directors, agreement or otherwise.
ARTICLE VIII
GENERAL PROVISIONS
Section 1. Checks. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate
Section 2. Fiscal Year. The fiscal year of the Corporations shall be fixed by resolution of the Board of Directors.
Section 3. Telephone and Similar Meetings. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, the shareholders, members of the Board of Directors or members of any committee of the Board of Directors may participate in and hold a meeting of such shareholders, the Board of Directors or committee, as the case may be, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in such a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting is not lawfully called or convened.
Section 4. Distributions and Share Dividends. Subject to statute and any provision of the Certificate of Incorporation, distributions in the form of cash or property or share dividends may be declared by the Board of Directors at any regular or special meeting.
Section 5. Amendment of Bylaws. Unless otherwise provided by law, the Certificate of Incorporation or these bylaws, these bylaws may be altered, amended or repealed, or new bylaws may be adopted, by the shareholders or the Board of Directors, subject to the shareholders providing in amending, repealing or adopting a particular bylaw that it may not be amended or repealed by the Board of Directors.
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Exhibit 4.1
WARRANT ASSUMPTION AGREEMENT
This Warrant Assumption Agreement (this Warrant Assumption Agreement) is entered into as of July 2, 2021, by and among Foley Trasimene Acquisition Corp., a Delaware corporation (FTAC), Alight, Inc., a Delaware corporation (the Company), and Continental Stock Transfer & Trust Company, a New York corporation (the Warrant Agent).
WHEREAS, FTAC and the Warrant Agent are parties to that certain Warrant Agreement, dated as of May 29, 2020 (the Warrant Agreement); and capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Business Combination Agreement (as defined below);
WHEREAS, FTAC, the Company, Tempo Holding Company, LLC, a Delaware limited liability company (Tempo), Acrobat SPAC Merger Sub, Inc., a Delaware corporation and direct, wholly owned subsidiary of the Company (FTAC Merger Sub), Acrobat Merger Sub, LLC, a Delaware limited liability company and direct, wholly owned subsidiary of FTAC (Tempo Merger Sub) and certain other parties named therein are parties to that certain Business Combination Agreement, dated as of January 25, 2021 (as it may be amended, supplemented or otherwise modified from time to time, the Business Combination Agreement), pursuant to which, on the terms and subject to the conditions set forth therein, among other things, FTAC Merger Sub will merge with and into FTAC, with FTAC being the surviving corporation in the merger and becoming a subsidiary of the Company (the FTAC Merger);
WHEREAS, pursuant to the terms and conditions of each of the Warrant Agreement and the Business Combination Agreement, at the effective time of the FTAC Merger (the FTAC Effective Time), by virtue of the FTAC Merger and pursuant to the Warrant Agreement, without any action on the part of any holder of Non-Founder FTAC Warrants, each Non-Founder FTAC Warrant that is outstanding immediately prior to the FTAC Effective Time will automatically and irrevocably be modified to provide that such Non-Founder FTAC Warrant shall no longer entitle the holder thereof to purchase the amount of share(s) of FTAC Common Stock set forth therein and in substitution thereof such Non-Founder FTAC Warrant shall entitle the holder thereof to acquire such number of shares of Company Class A Common Stock per Non-Founder FTAC Warrant, subject to adjustments as provided in the Warrant Agreement, that such holder would have been entitled to receive pursuant to the terms and conditions of the Warrant Agreement if such holder had exercised his, her or its Non-Founder FTAC Warrant immediately prior to the FTAC Effective Time; and
WHEREAS, as a result of this Warrant Assumption Agreement, at the FTAC Effective Time, the Company will assume all of the obligations of FTAC with respect to each Non-Founder FTAC Warrant, each of which will, at the FTAC Effective Time, become a warrant to purchase shares of Company Class A Common Stock pursuant to the terms and conditions of the Warrant Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, FTAC, the Company and the Warrant Agent hereby agree as follows:
1. Assignment and Assumption.
(a) Upon and subject to the occurrence of the FTAC Effective Time, FTAC hereby assigns, and the Company hereby assumes, the rights and obligations of FTAC under the Warrant Agreement and the Non-Founder FTAC Warrants, including the obligation to issue shares of Company Class A Common Stock upon the exercise of the Non-Founder FTAC Warrants, and the Company hereby agrees to faithfully perform, satisfy and discharge when due, the liabilities and obligations of FTAC under the Warrant Agreement and the Non-Founder FTAC Warrants. As a result of the FTAC Merger, upon and subject to
the occurrence of the FTAC Effective Time, each Non-Founder FTAC Warrant will be automatically and irrevocably modified, pursuant to and in accordance with Section 4 of the Warrant Agreement, with the effect that, at the FTAC Effective Time, each Non-Founder FTAC Warrant will be exchanged for a warrant to purchase shares of Company Class A Common Stock pursuant to the terms and conditions of the Warrant Agreement.
(b) The Company acknowledges and agrees that, subject to the terms of the Warrant Agreement, the Non-Founder FTAC Warrants and this Warrant Assumption Agreement, the Warrant Agreement and the Non-Founder FTAC Warrants shall continue in full force and effect following the FTAC Effective Time and that, from and after the FTAC Effective Time, all of FTACs obligations thereunder shall be valid and enforceable as against the Company and shall not be impaired or limited by the execution or effectiveness of this Warrant Assumption Agreement.
(c) This Warrant Assumption Agreement is being executed and delivered pursuant and subject to the Warrant Agreement. Nothing in this Warrant Assumption Agreement shall, or shall be deemed to, defeat, limit, alter, impair, enhance or enlarge any right, obligation, claim or remedy created by the Warrant Agreement or any other document or instrument delivered pursuant to or in connection with it.
(d) The choice of law and jurisdiction provisions set forth in the Warrant Agreement and this Warrant Assumption Agreement shall continue to govern the rights and obligations of the parties to the Warrant Agreement and this Warrant Assumption Agreement in all respects. The Company hereby waives any objection to the jurisdiction provision governing the terms of the Warrant Agreement and this Warrant Assumption Agreement.
2. Miscellaneous.
(a) Governing Law and Jurisdiction. The validity, interpretation, and performance of this Warrant Assumption Agreement shall be governed in all respects by 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 Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Warrant Assumption Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction. The Company hereby waives any objection to such jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to the Company at the address set forth below:
Alight, Inc.
4 Overlook Point
Lincolnshire, IL 60069
with a copy to:
Weil, Gotshal & Manges LLP
767 5th Avenue
New York, NY 10153
Attn: Michael J. Aiello
Sachin Kohli
E-mail: michael.aiello@weil.com
sachin.kohli@weil.com
and:
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Kirkland & Ellis LLP
601 Lexington Avenue
New York, NY 10022
Attn: Peter Martelli, P.C.; Lauren M. Colasacco, P.C.; Andrew Arons, P.C.
E-mail: peter.martelli@kirkland.com; lauren.colasacco@kirkland.com;
andrew.arons@kirkland.com
or to such other address or addresses as the parties may from time to time designate in writing.
(b) Binding Effect. This Warrant Assumption Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective successors and assigns.
(c) Entire Agreement. This Warrant Assumption Agreement sets forth the entire agreement and understanding between the parties as to the subject matter thereof and merges and supersedes all prior discussions, agreements and understandings of any and every nature among them. Except as expressly set forth in this Warrant Assumption Agreement, provisions of the Warrant Agreement which are not inconsistent with this Warrant Assumption Agreement shall remain in full force and effect. This Warrant Assumption Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
(d) Severability. This Warrant Assumption Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Warrant Assumption Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Warrant Assumption Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
(e) Amendment. This Warrant Assumption Agreement may not be amended, except by an instrument in writing signed by each party hereto.
(f) Termination. If the Business Combination Agreement is terminated in accordance with its terms before the FTAC Effective Time, this Warrant Assumption Agreement shall immediately terminate and cease to have any force or effect, without any liability on the part of any party hereto, as if this Warrant Assumption Agreement had not been executed and delivered.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have executed this Warrant Assumption Agreement as of the date first written above.
ALIGHT, INC. | ||||
By: | /s/ Michael L. Gravelle | |||
Name: |
Michael L. Gravelle |
|||
Title: |
General Counsel and Corporate Secretary |
FOLEY TRASIMENE ACQUISITION CORP. | ||||
By: | /s/ Michael L. Gravelle | |||
Name: |
Michael L. Gravelle |
|||
Title: |
General Counsel and Corporate Secretary |
CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||||
By: | /s/ Isaac J. Kagan | |||
Name: |
Isaac J. Kagan |
|||
Title: |
Vice President |
[Signature Page to Warrant Assumption Agreement]
Exhibit 99.1
Alight successfully closes business combination with Foley Trasimene Acquisition Corp.
New company to ring NYSE opening bell on July 6, 2021, to celebrate commencement of trading
Lincolnshire, Ill. July 6, 2021 Alight Solutions, a leading cloud-based provider of integrated digital human capital and business solutions, and Foley Trasimene Acquisition Corp. (NYSE:WPF) (Foley Trasimene), a special purpose acquisition company, today announced the completion of their business combination, which was approved by Foley Trasimene stockholders on June 30, 2021 and closed on July 2, 2021.
Alight, Inc.s Class A common stock and warrants will begin trading on the New York Stock Exchange (NYSE) today, under the ticker symbols ALIT and ALITW, respectively. To commemorate the merger and the first day of trading, Chief Executive Officer Stephan Scholl, Chief Financial Officer Katie Rooney, and other members of the companys management team will ring the opening bell at the NYSE this morning.
William P. Foley, II, Founder of Foley Trasimene and the new Chairman of Alight, commented, I am very excited to complete our business combination with Alight and begin working with Stephan and the entire Alight management team. We have a tremendous opportunity for growth ahead led by our BPaaS transformation and M&A initiatives. Alight is already an industry leader for employee engagement as the Companys scalable platform serves over 36 million employees and their family members and is installed in 50% of the Fortune 500.
Stephan Scholl, CEO of Alight, said, A company has no greater asset, responsibility, or opportunity than to take care of and empower its employees. The lingering impact of the pandemic coupled with the global talent shortage has made this truer today than ever before. As a public company, Alight will continue to invest in our business and technology, like our Alight Worklife platform, to deliver solutions across health, wealth and global payroll, that drive employee engagement and provide meaningful outcomes for our clients and their people while delivering value to our stakeholders.
With more than 25 years of operating history, Alight provides mission-critical solutions across health, wealth and global payrollconnecting the dots between people, work and life to help employees stay healthy, gain financial security, and make better decisions in these areas to improve their overall wellbeing. Alights business process as a service (BPaaS) solutions provide the systems, tools and technologies employees need to maximize the value of their benefits and improve outcomes, driving increased productivity and helping employers develop high-performance cultures.
Peter Wallace, Global Head of Core Private Equity at Blackstone, said, Since 2017, we have been proud to partner with Alight and its management team as they grow and transform the business to be the pre-eminent provider of health, wealth and global payroll solutions. We believe Alight has significant runway to accelerate growth with both organic and inorganic opportunities, and we look forward to continuing our relationship.
About Alight Solutions
With an unwavering belief that a companys success starts with its people, Alight Solutions is a leading cloud-based provider of integrated digital human capital and business solutions. Leveraging proprietary AI and data analytics, Alight optimizes business process as a service (BPaaS) to deliver superior outcomes for employees and employers across a comprehensive portfolio of services. Alight allows employees to enrich their health, wealth and work while enabling global organizations to achieve a high-performance culture. Alights 15,000 dedicated colleagues serve more than 30 million employees and family members. Learn how Alight helps organizations of all sizes, including over 70% of the Fortune 100, at alight.com.
Forward-Looking Statements
This press release includes certain forward-looking statements that 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. Alight Inc.s actual results may differ from its expectations, estimates, and projections and, consequently, you should not rely on these forward-looking statements as predictions of future events. Words such as expect, estimate, project, budget, forecast, anticipate, intend, plan, may, will, could, should, believes, predicts, potential, continue, and similar expressions (or the negative versions of such words or expressions) are intended to identify such forward-looking statements. These forward-looking statements include, without limitation, Alight, Inc.s expectations with respect to
future performance. These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially, and potentially adversely, from those expressed or implied in the forward-looking statements. Most of these factors are outside Alight, Inc.s control and are difficult to predict. Factors that may cause such differences include, but are not limited to: (1) the outcome of any legal proceedings that may be instituted against Foley Trasimene and/or Alight, Inc. following the completion of the business combination; (2) the impact of COVID-19 on Alight, Inc.s business; (3) the risk that the business combination disrupts current plans and operations; (4) the ability to recognize the anticipated benefits of the business combination, which may be affected by, among other things, competition, the ability of Alight, Inc. to grow and manage growth profitably, and retain its key employees; (5) costs related to the business combination; (6) changes in applicable laws or regulations; and (7) the possibility that Alight, Inc. may be adversely affected by other economic, business, and/or competitive factors. The foregoing list of factors is not exclusive. Additional information concerning certain of these and other risk factors is contained in Foley Trasimenes most recent filings with the SEC and the definitive proxy statement/prospectus/consent solicitation statement filed in connection with the business combination. All subsequent written and oral forward-looking statements concerning Alight, Inc., the transactions described herein or other matters and attributable to Foley Trasimene, Alight, Inc. or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements above. Readers are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made. Alight, Inc. expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in its expectations with respect thereto or any change in events, conditions, or circumstances on which any statement is based, except as required by law.
Contacts:
Investors:
John Rouleau
john.rouleau@alight.com
Media:
MacKenzie Lucas
mackenzie.lucas@alight.com
alight.com