Cyxtera Technologies, Inc. (Form: 8-K, Received: 05/22/2023 17:06:42)

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): May 19, 2023

__________________________________

Cyxtera Technologies, Inc.

(Exact name of registrant as specified in its charter)

__________________________________


Delaware (State or other jurisdiction of incorporation)	001-39496	84-3743013 (IRS Employer Identification No.)
2333 Ponce de Leon Boulevard Suite 900 Coral Gables, FL 33134 (Address of principal executive office)	(Commission File Number)	33134 (Zip Code)

(305) 537-9500

Registrant’s telephone number, including area code

N/A

(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:


o			Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o			Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o			Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o			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

Symbol(s)

Name of each exchange

on which registered

Class A common stock, par value $0.0001 per

CYXT

The Nasdaq Stock Market LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company x

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. o

Item 1.01. Entry into a Material Definitive Agreement.

On May 19, 2023, Cyxtera Technologies, Inc. (the “Company”) entered into a Waiver and Agreement (the “Waiver and Agreement”) with BCEC-SIS Holdings L.P., a Delaware limited partnership (the “BC Stockholder”), and SVAC Sponsor LLC, a Delaware limited liability company (the “Starboard Sponsor”), to waive certain provisions in the Stockholders Agreement, dated as of July 29, 2021 (as amended, supplemented or otherwise modified to date, the “Stockholders Agreement”) among the Company, the BC Stockholder, the Starboard Sponsor and certain investor parties. Under the Waiver and Agreement, the BC Stockholder and the Starboard Sponsor acknowledged that the size of the board of directors of the Company (the “Board”) will be increased from nine to ten directors, agreed to appoint Scott Vogel as an independent director to the Board and waived any provisions of Section 2.1(a) of the Stockholders Agreement that are inconsistent with the foregoing actions. The Waiver and Agreement enables the Company to comply with the terms contained in the Restructuring Support Agreement, dated as of May 4, 2023, among the Company and the other parties thereto.

The foregoing description is not complete and is qualified in its entirety by reference to the full text of the Waiver and Agreement, a copy of which is filed herewith as Exhibit 10.1 and is incorporated herein by reference.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On May 19, 2023, the Board elected Scott Vogel to serve as a member of the Board. Mr. Vogel was appointed pursuant to the terms of the Stockholders Agreement, as modified by the Waiver and Agreement.

Mr. Vogel is a senior investment professional with 25 years of experience and currently serves as the Managing Member at Vogel Partners LLC, a private investment and advisory firm specializing in independent board of director services, strategic and capital planning and corporate transformations within multiple industries. His professional experience includes investing in complex financial restructurings, liquidations and major litigation and process intensive situations. Mr. Vogel has led creditors’ committees and served as a director on numerous public and private boards of directors with an extensive track-record of driving value-added returns for all stakeholders through governance, incentive alignment, management evaluation and recruitment, finance, accounting, capital markets transactions and mergers and acquisitions. Mr. Vogel served as Managing Director at Davidson Kempner Capital Management investing in distressed debt securities from 2002 through July 2016. Previously, he worked at MFP Investors, investing in special situations and turnaround opportunities for the private investment firm of Michael F. Price and at Chase Securities in its investment banking group. Mr. Vogel has previously served on the following public company boards: Arch Coal, Inc., Alpha Metallurgical Resources, Avaya Holdings Corporation, Faraday Future Intelligent Electric Inc., Key Energy Services, CBL & Associates Properties Inc. and American Addiction Centers and is currently a member of the boards of directors of several private companies. Mr. Vogel is a member of the Olin Alumni Board of Washington University and a member of the Advisory Board of Grameen America. Mr. Vogel received an MBA from The Wharton School of the University of Pennsylvania and a B.S.B.A. from the Olin Business School of Washington University in St. Louis.

The Board determined that Mr. Vogel meets the independence standards of the rules of The NASDAQ Stock Market LLC and the applicable rules of the Securities and Exchange Commission (the “SEC”). There are no transactions in which Mr. Vogel has an interest requiring disclosure under Item 404(a) of Regulation S-K.

The Company has entered into a disinterested director letter agreement (a “Letter Agreement”) with Mr. Vogel. In accordance with the Letter Agreement, Mr. Vogel will receive cash compensation equal to $480,000 per annum, payable monthly. The foregoing description is not complete and is qualified in its entirety by reference to the full text of the Letter Agreement, a form of which is attached hereto as Exhibit 10.2 and is incorporated herein by reference.

The Company has also entered into its standard form of Indemnification Agreement with Mr. Vogel. The Form of Indemnification Agreement is filed as Exhibit 10.10 to the Company’s Current Report as filed with the SEC on August 4, 2021.

Item 9.01. Financial Statement and Exhibits.

(d) Exhibits.


Exhibit Number						Description
10.1						Waiver and Agreement, dated as of May 19, 2023, among Cyxtera Technologies, Inc., BCEC-SIS Holdings L.P. and SVAC Sponsor LLC
10.2						Form of Letter Agreement
104						Cover Page Interactive Data File (embedded within the Inline XBRL document).

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.


	Cyxtera Technologies, Inc.

Date: May 22, 2023	By:	/s/ Victor Semah
	Name:	Victor Semah
	Title:	Chief Legal Officer

Exhibit 10.1

WAIVER AND AGREEMENT

This Waiver and Agreement (this “Waiver and Agreement”) is entered into as of May 19, 2023 by and among (i) Cyxtera Technologies, Inc., a Delaware corporation (f/k/a Starboard Value Acquisition Corp.) (the “Company”), (ii) BCEC-SIS Holdings L.P., a Delaware limited partnership (the “BC Stockholder”), and (iii) SVAC Sponsor LLC, a Delaware limited liability company (the “Starboard Sponsor”). Capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Stockholders Agreement (as defined below).

WHEREAS, the Company, the BC Stockholder and Starboard Sponsor are parties to that certain Stockholders Agreement, dated July 29, 2021 (as amended and supplemented to date, the “Stockholders Agreement”);

WHEREAS, the Stockholders Agreement includes certain agreements of the parties with respect to the composition of the Board and the designation of directors by the BC Stockholder and the Starboard Sponsor;

WHEREAS, Jeffrey C. Smith resigned from the Board on March 27, 2023;

WHEREAS, as a result of Mr. Smith’s resignation the Starboard Sponsor has the right to designate a Starboard Designee for election to the Board to fill the vacancy created by Mr. Smith’s resignation, subject to the terms and conditions of the Stockholders Agreement;

WHEREAS, the Company entered into that certain Restructuring Support Agreement, dated as of May 4, 2023, by and among the Company, the other Company Parties (as defined therein) party thereto and the Consenting Stakeholders (as defined therein) party thereto (the “Restructuring Support Agreement”);

WHEREAS, pursuant to the Restructuring Support Agreement, the Company agreed to use commercially reasonable efforts to obtain the necessary consents for the appointment of, and to appoint, an additional independent director to the Board (the “RSA Director”); and

WHEREAS, the Company, the BC Stockholder and the Starboard Sponsor wish to enter into this Waiver and Agreement to set forth certain matters with respect to the appointment of the RSA Director.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in this Stockholders Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows:

Section 1. Acknowledgment, Agreement and Waiver. Each of BC Stockholder and the Starboard Sponsor: (a) acknowledges that, prior to or contemporaneously with the appointment of the RSA Director, the size of the Board will be increased from nine (9) directors to ten (10) directors; (b) agrees to the appointment of Scott Vogel as the RSA Director, to fill the vacancy created by the increase to the size of the Board; and (c) waives any provision of Section 2.1(a) of the Stockholders’ Agreement that is inconsistent with the actions described in the foregoing clauses (a) and (b). For the elimination of doubt, each of the Company, the BC Stockholder and the Starboard Sponsor acknowledges and agrees that: (i) the RSA Director will not fill the open Board vacancy for a Starboard Designee and (ii) that neither the increase to the size of the Board nor the appointment of the RSA Director is intended to limit the Starboard Sponsor’s rights under the Stockholders’ Agreement to designate an individual to serve as a Starboard Designee.

Section 2. Limited Effect; No Modifications. The waiver set forth above shall be limited to the matters set forth therein, and nothing in this Waiver and Agreement shall be deemed to constitute a waiver by any party of compliance with respect to any other term, provision, or condition of the Stockholders Agreement. Except as expressly set forth herein, nothing contained in this Waiver and Agreement will be deemed or construed to amend, supplement, or modify the Stockholders Agreement or otherwise affect the rights and obligations of any party thereto, all of which remain in full force and effect.

Section 4. Miscellaneous. Sections 4.1, 4.4, 4.5, 4.7 and 4.13 of the Stockholders Agreement are incorporated herein, mutatis mutandis.

[Signature Page Follows]

IN WITNESS WHEREOF, each of the parties hereto has duly executed this Waiver and Agreement as of the date first set forth above.

COMPANY:

CYXTERA TECHNOLOGIES, INC.

By: /s/ Victor Semah

Name: Victor Semah

Title: Chief Legal Officer

BC STOCKHOLDER:

BCEC-SIS HOLDINGS L.P.

By: CIE MANAGEMENT IX LIMITED,

its general partner

By: /s/ Lee Clark

Name: Lee Clark

Title: Director

By: /s/ Matthew Elston

Name: Matthew Elston

Title: Director

By: BCEC MANAGEMENT X LIMITED,

its general partner

By: /s/ Lee Clark

Name: Lee Clark

Title: Director

By: /s/ Matthew Elston

Name: Matthew Elston

Title: Director

Starboard Sponsor:

SVAC SPONSOR, LLC

By: /s/ Kenneth Marlin

Name: Kenneth Marlin

Title:

[Signature Page to Waiver and Agreement]

Exhibit 10.2

Cyxtera Technologies, Inc.

2333 Ponce De Leon Boulevard Suite 900

Coral Gables, FL

USA

_____, 202___

Dear Mr. _______:

On behalf of Cyxtera Technologies, Inc. (the “Company”), I am pleased to invite you to become a member of the board of directors of the Company (the “Board”).

You will serve as a disinterested director (a “Director”), as such term has been construed in accordance with Delaware law. By signing this letter agreement, you confirm that you do not possess material business, close personal relationships, or other affiliations, or any history of any such material business, close personal relationships, or other affiliations, with the Company or any of its major debtholders or its controlling equityholders that would cause you to be unable to (a) exercise independent judgment based on the best interests of the Company or (b) make decisions and carry out your responsibilities as a member of the Board in accordance with the terms of the Company’s certificate of incorporation and applicable law.

As a member of the Board, and as long as you remain a member of the Boards, you will receive cash compensation equal to $480,000 per annum, payable monthly in advance (i.e., $40,000 each month in advance). For the avoidance of doubt, if you do not serve the full year for any given year, you will only be entitled to receive up to the last monthly compensation for the month in which you stop serving as a member of the Board, and you will not be entitled to receive the full yearly compensation. Such payments will be prorated to reflect your actual term of service, based on the date of your appointment to the Board, and continuing until such date as you cease to serve on the Board. Additionally, the Companies agree to pay you a daily fee of $7,500

for each day that you are required to attend a mediation session or a deposition, testify in court,

and/or spend more than four hours on such day preparing for a mediation session, deposition, or

a court appearance. In addition, you will be reimbursed for all reasonable and documented out-of-pocket business expenses incurred by you in connection with your service to the Company as a member of the Board. You will also be covered by the Company’s directors’ and officers’ insurance policy, in an amount and on terms as reasonably determined by the Board. The Company will also indemnify you as reasonably determined by the Board and authorized pursuant to the Company’s organizational documents, as more fully set forth in the indemnification agreement attached hereto as Annex A.

Our expectation is that the Board will meet weekly or such cadence as the Board determines appropriate. We ask that you make yourself available to participate in those meetings either via video conferencing or telephonically, or in person, as may be appropriate.

A Director may voluntarily resign in which event this letter agreement shall terminate as of the date of such resignation or removal.

Your service on the Board will be in accordance with, and subject to, the organizational documents of the Company and applicable law concerning the service of directors in the state of Delaware, as the same may be further amended from time to time. In accepting this offer, you are representing to us that you do not know of any conflict or legal prohibition that would restrict

you from becoming, or could reasonably be expected to preclude you from remaining, a member of the Board.

You and the Company each acknowledge that for you to perform your duties as a Director, you shall necessarily be obtaining access to certain confidential information concerning the Company and its affiliates, including, but not limited to, business methods, financial data, and strategic plans which are unique assets of the Company or its affiliates (collectively, the “Confidential Information”). You covenant that you shall not, either directly or indirectly, in any manner, utilize or disclose to any person, firm, corporation, association, or other entity any Confidential Information, except (i) as required by law, (ii) pursuant to a subpoena or order issued by a court, governmental body, agency, or official, or (iii) to the extent such information (A) is generally known to the public, (B) was known to you prior to its disclosure to you by the Company, (C) was obtained by you from a third party which, to your knowledge, was not prohibited from disclosing such information to you pursuant to any contractual, legal, or fiduciary obligation, or (D) was independently derived by you without any use of Confidential Information. This paragraph shall continue in effect after you have ceased acting as a Director of the Company.

You and the Company acknowledge that this letter agreement is governed by and shall be construed in accordance with laws of the state of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the state of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdictions other than the state of Delaware.

This letter sets forth the terms of your service with the Company and supersedes any prior representations or agreements, whether written or oral. This letter must be accepted within three (3) business days of the date set forth above, and it may not be modified or amended except by a written agreement, signed by a duly authorized representative of the Company and by you.

We look forward to working with you.

[Signature page follows]

Sincerely,

[Name]

Title:

ACCEPTED AND AGREED:

I accept and consent to be designated as a member of the Board and agree to so serve, subject to the terms and conditions set forth herein.



Date			Signature [NAME]