Execution Version
Exhibit 10.1
Amended and restated INVESTOR RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (as it may be amended, supplemented or restated from time to time in accordance with the terms hereof, this “Agreement”), dated as of September 1, 2021 (the “Effective Date”), is made by and among (i) E2open Parent Holdings, Inc., a Delaware corporation and successor to CC Neuberger Principal Holdings I, a Cayman Islands exempted company (including any of its successors or assigns, “PubCo”); (ii) (A) Insight Venture Partners Growth-Buyout Coinvestment Fund (Cayman), L.P., a Cayman Islands exempted limited partnership (“GBCF Cayman”), (B) Insight Venture Partners Growth-Buyout Coinvestment Fund (Delaware), L.P., a Cayman Islands exempted limited partnership (“GBCF Delaware”), (C) Insight Venture Partners (Cayman) IX, L.P., a Cayman Islands exempted limited partnership (“IVP Cayman”) and (D) Insight Venture Partners (Delaware) IX, L.P., a Delaware limited partnership (together with GBCF Cayman, GBCF Delaware, and IVP Cayman, the “IVP Blocked Equityholders”); (iii) (A) Helios Associates, LLC, a Delaware limited liability company (“Helios”), and (B) Sesame Investments LP, a Delaware limited partnership (together with Helios, the “Elliott Equityholders”); (iv) (A) EFFEM Master Fund II Parallel, L.P., a Delaware limited partnership (“PEM Parallel Fund II”), (B) EFFEM Master Fund II, L.P., a Delaware limited partnership (“PEM Fund II”) and (C) Performance EFFEM PE Fund II, L.P. (Series 2017), (together with PEM Parallel Fund II and PEM Fund II, the “PEM Blocked Equityholders,” and collectively with the IVP Blocked Equityholders and the Elliott Equityholders, the “Blocked Equityholders”); (v) Insight E2open Aggregator, LLC (“IVP Aggregator”, together with the IVP Blocked Equityholders, the “IVP Equityholders”); (vi) Performance Direct Investments III, L.P., a Delaware limited partnership (together with the PEM Blocked Equityholders, the “PEM Equityholders”); (vii) CC Neuberger Principal Holdings I Sponsor LLC, a Delaware limited liability company (the “Sponsor”); (viii) CC NB Sponsor 1 Holdings LLC, a Delaware limited liability company (“CC Capital”); (ix) Neuberger Berman Opportunistic Capital Solutions Master Fund LP, a Cayman Islands exempted limited partnership (“NBOKS” and, together with CC Capital, the “Founder Holders”); (x) Eva F. Huston and Keith W. Abell (each, a “CCNB1 Independent Director” and, together, the “CCNB1 Independent Directors”); (xi) Francisco Partners III (Cayman), L.P., a Cayman Islands exempted limited partnership, and Francisco Partners Parallel Fund III (Cayman), L.P., a Cayman Islands exempted limited partnership (collectively, the “Francisco Partners Equityholders”); and (xii) Anderson Investments Pte. Ltd., a Singapore private limited company (the “Temasek Equityholder” and collectively with Francisco Partners Equityholders, the “BluJay Equityholders” each of the Temasek Equityholder and the Francisco Partners Equityholders, a “BluJay Equityholder”, and the BluJay Equityholders collectively with the Blocked Equityholders, the IVP Aggregator and the PEM Equityholders, the “Equityholders”). Each of PubCo, each Equityholder, the Sponsor, each Founder Holder and each CCNB1 Independent Director may be referred to herein as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS, PubCo entered into that certain Business Combination Agreement, dated as of October 14, 2020 (as amended, and as it may be further amended from time to time in accordance with the terms thereof, the “BCA”), by and among PubCo, the Blocker Merger Subs (as defined in the BCA), each wholly owned subsidiaries of PubCo, the Company Merger Sub (as defined in the BCA), a wholly owned subsidiary of PubCo, the Blockers (as defined in the BCA), E2open Holdings, LLC (formerly known as Eagle Parent Holdings, LLC), a Delaware limited liability company (the “Operating Company”), and the other parties thereto, in connection with the business combination of PubCo and the Operating Company (the “Business Combination”) and other transactions contemplated therein;
WHEREAS, pursuant to the BCA, at the Closing, among other things (i) the Operating Company became a subsidiary of PubCo and PubCo acquired a certain number of common units in the Operating
Company (“Common Units”) and (ii) (A) the holders of Equity Securities of the Operating Company (including IVP Aggregator but excluding the Blockers) immediately prior to the Effective Time (as defined in the BCA), received (1) a certain number of Common Units and the same number of shares of Class V Common Stock and (2) a certain number of unvested performance-based restricted Common Units (“Restricted Common Units”), and (B) the Blocked Equityholders, immediately prior to the Effective Time (as defined in the BCA), received (1) a certain number of shares of Class A Common Stock and (2) a certain number of shares of Class B Common Stock, in each case in accordance with the terms of the BCA;
WHEREAS, upon the consummation of the Business Combination, PubCo and the other persons holding Common Units and Restricted Common Units, including IVP Aggregator, entered into that certain third amended and restated operating agreement of the Operating Company dated as of February 4, 2021 (as it may be further amended, supplemented or restated from time to time in accordance with the terms of such agreement, the “LLC Agreement”);
WHEREAS, pursuant to the LLC Agreement, upon satisfaction of the conditions set forth in the LLC Agreement, (i) the Restricted Common Units will vest and become Common Units and (ii) PubCo will issue to the holders of such Common Units an additional number of shares of Class V Common Stock such that each such holder holds the same number of Common Units and shares of Class V Common Stock, and upon satisfaction of the conditions set forth in the Certificate of Incorporation, the shares of Class B Common Stock will convert automatically into shares of Class A Common Stock of PubCo;
WHEREAS, each of the Equityholders holding Common Units has the right to exchange such Common Units, along with the cancelation of an equal number of shares of Class V Common Stock, for shares of Class A Common Stock pursuant to the terms and conditions of the LLC Agreement;
WHEREAS, PubCo, the Sponsor and the CCNB1 Independent Directors entered into that certain Registration and Shareholder Rights Agreement, dated as of April 28, 2020 (the “Original RRA”);
WHEREAS, at the consummation of the Business Combination, on February 4, 2021, PubCo, the Sponsor, the Founder Holders, the CCNB1 Independent Directors and the Equityholders (other than the BluJay Equityholders) entered into an Investor Rights Agreement (the “Original IRA”);
WHEREAS, in connection with the execution of the Original IRA, PubCo, the Sponsor and the CCNB1 Independent Directors terminated the Original RRA and replaced it with the Original IRA;
WHEREAS, PubCo entered into that certain Share Purchase Agreement, dated as of May 26, 2021 (as amended, and as it may be further amended from time to time in accordance with the terms thereof, the “SPA”), by and among PubCo, BluJay Toco Limited (“BluJay”), the BluJay Equityholders, the Management Sellers (as defined in the SPA) and the Non-Management Sellers (as defined in the SPA), in connection with the acquisition by PubCo of BluJay (the “BluJay Acquisition”) and other transactions contemplated therein;
WHEREAS, pursuant to the SPA, at the Completion, among other things (i) PubCo will, directly or indirectly, acquire all of the outstanding equity interests of BluJay, and BluJay will become a direct or indirect wholly-owned subsidiary of the Operating Company;
WHEREAS, at the Completion, the BluJay Equityholders will receive a certain number of shares of Class A Common Stock;
WHEREAS, in connection with Completion, the Parties hereto desire to amend and restate the Original IRA in its entirety and replace it with this Agreement;
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WHEREAS, the Original IRA can be amended in the form of this Agreement with the consent of PubCo, the IVP Representative and the Sponsor Representative; and
WHEREAS, on the Effective Date, the Parties desire to amend and restate the Original IRA to add the BluJay Equityholders as party hereto and to otherwise set forth their agreement with respect to governance, registration rights and certain other matters, in each case in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
DEFINITIONS
“Action” means any action, suit, charge, litigation, arbitration, or other proceeding at law or in equity (whether civil, criminal or administrative) by or before any Governmental Entity.
“Adverse Disclosure” means any public disclosure of material non-public information, which disclosure, in the good faith determination of the Board, after consultation with counsel to PubCo, (a) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any Prospectus and any preliminary Prospectus, in the light of the circumstances under which they were made) not misleading, (b) would not be required to be made at such time if the Registration Statement were not being filed, and (c) PubCo has a bona fide, material business purpose for not making such information public.
“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, its capacity as a sole or managing member or otherwise; provided that no Party shall be deemed an Affiliate of PubCo or any of its subsidiaries for purposes of this Agreement.
“Agreement” has the meaning set forth in the Preamble.
“Automatic Shelf Registration Statement” has the meaning set forth in Rule 405 promulgated by the SEC pursuant to the Securities Act.
“BCA” has the meaning set forth in the Recitals.
“Beneficially Own” has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act; provided, that, a Transfer with respect to any Equity Securities shall, for purposes of this Agreement, means that the Transferor no longer Beneficially Owns such Equity Securities (except, for the avoidance of doubt, for any Transfer to Permitted Transferees or with respect to pledges or encumbrances which do not Transfer economic risk). “Beneficially Owns,” “Beneficially Owned,” and “Beneficial Ownership” shall have correlative meanings.
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“Blocked Equityholder” has the meaning set forth in the Preamble.
“BluJay” has the meaning set forth in the Recitals.
“BluJay Acquisition” has the meaning set forth in the Recitals.
“BluJay Equityholder” has the meaning set forth in the Preamble.
“Board” means the board of directors of PubCo.
“Business Combination” has the meaning set forth in the Recitals.
“Business Day” means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the State of New York.
“Bylaws” means the bylaws of PubCo, as in effect on the Effective Date, as the same may be amended from time to time.
“CC Capital” has the meaning set forth in the Preamble.
“CCNB1” means CC Neuberger Principal Holdings I, a Cayman Islands exempted company.
“CCNB1 Independent Directors” has the meaning set forth in the Preamble.
“CEO Director” has the meaning set forth in Section 3.1(a).
“Certificate of Incorporation” means the certificate of incorporation of PubCo, as in effect on the Effective Date, as the same may be amended from time to time.
“CFIUS” shall mean the Committee on Foreign Investment in the United States, including any member agency acting in its capacity as such.
“CFIUS Authorities” means the Defense Production Act of 1950 (50 U.S.C.§ 4565), and its implementing regulations located at 31 C.F.R. Parts 800-802.
“CFIUS Clearance” means any of the following shall have occurred: (i) CFIUS has concluded that the BluJay Acquisition is not a “Covered Real Estate Transaction” or otherwise a “Covered Transaction” and is not subject to review under the CFIUS Authorities; (ii) CFIUS has issued a written notice that it has completed a review or investigation of the declaration or notice provided pursuant to the CFIUS Authorities with respect to the BluJay Acquisition, and has concluded all action under the CFIUS Authorities; (iii) in the event that the parties have filed a declaration, CFIUS has informed the Parties that it is unable to conclude action under the CFIUS Authorities with respect to the BluJay Acquisition on the basis of the declaration, but CFIUS has not requested that the Parties file a written notice of the BluJay Acquisition, and the 30-day assessment period established by CFIUS for the review of the declaration shall have elapsed, or (iv) if CFIUS has sent a report to the President of the United States (“President”) requesting the President’s decision and (x) the President has announced a decision not to take any action to suspend or prohibit the proposed action or (y) having received a report from CFIUS requesting the President’s decision, the President has not taken any action after fifteen (15) days from the earlier of the date the President received such report from CFIUS or the end of the investigation period.
“Class A Common Stock” means, as applicable, (a) the Class A common stock, par value $0.0001 per share, of PubCo, or (b) following any consolidation, merger, reclassification or other similar event
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involving PubCo, any shares or other securities of PubCo or any other Person that are issued or issuable in consideration for the Class A common stock or into which the Class A common stock is exchanged or converted as a result of such consolidation, merger, reclassification or other similar event.
“Class B Common Stock” means, as applicable, (a) the Class B common stock, par value $0.0001 per share, of PubCo, or (b) following any consolidation, merger, reclassification or other similar event involving PubCo, any shares or other securities of PubCo or any other Person that are issued or issuable in consideration for the Class B common stock or into which the Class B common stock is exchanged or converted as a result of such consolidation, merger, reclassification or other similar event.
“Class V Common Stock” means, as applicable, (a) the Class V common stock, par value $0.0001 per share, of PubCo, or (b) following any consolidation, merger, reclassification or other similar event involving PubCo, any shares or other securities of PubCo or any other Person that are issued or issuable in consideration for the Class V common stock or into which the Class V common stock is exchanged or converted as a result of such consolidation, merger, reclassification or other similar event.
“Closing” has the meaning given to such term in the BCA.
“Closing Date” has the meaning given to such term in the BCA, which date is February 4, 2021.
“Common Stock” means shares of the Class A Common Stock, the Class B Common Stock and the Class V Common Stock, including any shares of the Class A Common Stock, the Class B Common Stock and the Class V Common Stock issuable upon the exercise of any warrant or other right to acquire shares of the Class A Common Stock, the Class B Common Stock and the Class V Common Stock.
“Common Units” has the meaning set forth in the Recitals.
“Company Units” means the Common Units and the Restricted Common Units.
“Completion” has the meaning given to such term in the SPA.
“Completion Date” has the meaning given to such term in the SPA.
“Confidential Information” has the meaning set forth in Section 3.4.
“Demanding Holders” has the meaning set forth in Section 4.1(c).
“E2open” means E2open, LLC, a Delaware limited liability company.
“Economic Interests” mean (a) for the IVP Equityholders, (i) Common Units, plus any Common Units issued upon the conversion of Restricted Common Units pursuant to clause (y) below and (ii) shares of Class A Common Stock, plus any shares of Class A Common Stock issued upon the conversion of shares of Class B Common Stock pursuant to clause (y) below, in each case owned by the IVP Equityholders or their Permitted Transferees, (b) for the Elliott Equityholders, shares of Class A Common Stock, plus any shares of Class A Common Stock issued upon the conversion of shares of Class B Common Stock pursuant to clause (y) below, in each case owned by the Elliott Equityholders or their Permitted Transferees, (c) for the Sponsor, 12,766,286 shares of Class A Common Stock, plus any shares of Class A Common Stock issued upon the conversion of shares of Class B Common Stock pursuant to clause (y) below owned by the Sponsor or its Permitted Transferees, (d) for CC Capital, 6,383,143 shares of Class A Common Stock, plus any shares of Class A Common Stock issued upon the conversion of shares of Class B Common Stock pursuant to clause (y) below owned by CC Capital or its Permitted Transferees, (e) for the Francisco
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Partners Equityholders, shares of Class A Common Stock owned by the Francisco Partners Equityholders or their Permitted Transferees, and (f) for the Temasek Equityholder, shares of Class A Common Stock owned by the Temasek Equityholder or its Permitted Transferees, in the case of clauses (a), (b), (c), (d) (e) and (f), as equitably adjusted for stock splits, stock dividends, combinations, recapitalizations and the like. For purposes of computing the percentage of Economic Interests held by the IVP Equityholders in clause (a), the Elliott Equityholders in clause (b), the Sponsor in clause (c) and CC Capital in clause (d) in Section 3.1 and Section 6.4(b), in each case, Restricted Common Units and Class B Common Stock shall (x) not be included as held as of the Closing Date or at the applicable time while unvested and remaining Restricted Common Units or shares of Class B Common Stock and (y) be included as being held as of the Closing Date and at the applicable time beginning only if and when they vest and convert into Common Units or shares of Class A Common Stock.
“Effective Date” has the meaning set forth in the Preamble.
“Equity Securities” means, with respect to any Person, all of the shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock or equity of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares or equity (or such other interests), restricted stock awards, restricted stock units, equity appreciation rights, phantom equity rights, profit participation and all of the other ownership or profit interests of such Person (including partnership or member interests therein), whether voting or nonvoting.
“Equityholders” has the meaning set forth in the Preamble.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor thereto, and any rules and regulations promulgated thereunder, all as the same shall be in effect from time to time.
“Family Member” means with respect to any Person, a spouse, lineal descendant (whether natural or adopted) or spouse of a lineal descendant of such Person or any trust created for the benefit of such Person or of which any of the foregoing is a beneficiary.
“FINRA” means the Financial Industry Regulatory Authority, Inc.
“Form S-1 Shelf” has the meaning set forth in Section 4.1(a).
“Form S-3 Shelf” has the meaning set forth in Section 4.1(a).
“Forward Purchase Agreement” means that certain forward purchase agreement, dated as of April 28, 2020, among PubCo and NBOKS, as amended by that certain Side Letter, dated as of October 14, 2020, by and between NBOKS and PubCo, pursuant to which NBOKS purchased 20,000,000 Class A ordinary shares of PubCo and a number of redeemable warrants to purchase Class A ordinary shares of PubCo equal to 1/4 the number of Class A ordinary shares of PubCo purchased, in a private placement that occurred concurently with the Closing.
“Founder Holders” has the meaning set forth in the Preamble.
“FP Director” has the meaning set forth in Section 3.1(a).
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“FP Representative” means Francisco Partners III (Cayman), L.P., or such other Person, which Person must be an Affiliate of Francisco Partners III (Cayman), L.P. or Francisco Partners Parallel Fund III (Cayman), L.P., who is identified as the replacement FP Representative by the then existing FP Representative giving prior written notice to PubCo.
“Francisco Partners Equityholders” has the meaning set forth in the Preamble.
“GBCF Cayman” has the meaning set forth in the Preamble.
“GBCF Delaware” has the meaning set forth in the Preamble.
“Governmental Entity” means any nation or government, any state, province or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, arbitrator (public or private) or other body or administrative, regulatory or quasi-judicial authority, agency, department, board, commission or instrumentality of any federal, state, local or foreign jurisdiction.
“Holder” means any holder of Registrable Securities who is a Party to, or who succeeds to rights under, this Agreement pursuant to Article VI; provided that a Party who does not hold Registrable Securities as of the Effective Date and who acquires Registrable Securities after the Effective Date will not be a Holder until such Party gives PubCo a representation in writing of the number of Registrable Securities it holds.
“Holder Information” has the meaning set forth in Section 4.10(b).
“Initial Form S-1 Shelf” has the meaning set forth in Section 4.1(a).
“Initial Period” has the meaning set forth in Section 3.1(d)(i)(A).
“IVP Aggregator” has the meaning set forth in the Preamble.
“IVP Blocked Equityholders” has the meaning set forth in the Preamble.
“IVP Cayman” has the meaning set forth in the Preamble.
“IVP Director” has the meaning set forth in Section 3.1(a).
“IVP Equityholders” has the meaning set forth in the Preamble.
“IVP Representative” means IVP Aggregator, or such other Person, which Person must be an Affiliate of Insight Venture Management, LLC, who is identified as the replacement IVP Representative by the then existing IVP Representative giving prior written notice to PubCo.
“Laws” means all laws, acts, statutes, constitutions, treaties, ordinances, codes, rules, regulations, and rulings of a Governmental Entity, including common law. All references to “Laws” shall be deemed to include any amendments thereto, and any successor Law, unless the context otherwise requires.
“LLC Agreement” has the meaning set forth in the Recitals.
“Lock-Up Period” has the meaning set forth in Section 5.1(a).
“Lock-Up Shares” has the meaning set forth in Section 5.1(a).
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“Maximum Number of Securities” has the meaning set forth in Section 4.1(e).
“Minimum Takedown Threshold” has the meaning set forth in Section 4.1(c).
“Misstatement” means an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus, in the light of the circumstances under which they were made, not misleading.
“NBOKS” has the meaning set forth in the Preamble.
“Necessary Action” means, with respect to any Party and a specified result, all actions (to the extent such actions are not prohibited by applicable Law and within such Party’s control, and in the case of any action that requires a vote or other action on the part of the Board to the extent such action is consistent with fiduciary duties that PubCo’s directors may have in such capacity) necessary to cause such result, including (a) calling special meetings of stockholders, (b) voting or providing a written consent or proxy, if applicable in each case, with respect to shares of Common Stock, (c) causing the adoption of stockholders’ resolutions and amendments to the Organizational Documents, (d) executing agreements and instruments, (e) making, or causing to be made, with Governmental Entities, all filings, registrations or similar actions that are required to achieve such result and (f) nominating certain Persons for election to the Board in connection with the annual or special meeting of stockholders of PubCo.
“New Shelf” has the meaning set forth in Section 4.1(a).
“Operating Company” has the meaning set forth in the Recitals.
“Organizational Documents” means the Certificate of Incorporation and the Bylaws.
“Original IRA” has the meaning set forth in the Recitals.
“Original RRA” has the meaning set forth in the Recitals.
“Participation Conditions” has the meaning set forth in Section 4.1(d).
“Party” has the meaning set forth in the Preamble.
“Permitted Transferee” means with respect to any Person, (i) any Family Member of such Person and (ii) any Affiliate of such Person (including any partner, shareholder, member controlling or under common control with such Member and Affiliated investment fund or vehicle) of such Person, but excluding any Affiliate under this clause (ii) who operates or engages in a business which competes with the business of PubCo or the Operating Company and any portfolio company; provided that no Affiliated investment fund or vehicle of any Person (for the avoidance of doubt, excluding portfolio companies) shall be deemed to operate or engage in any such competing business, including as a result of ownership of securities (including a controlling interest) of any portfolio company that engages in or competes with the business of PubCo or the Operating Company so long as such securities are not the only securities held by such Affiliated investment fund or vehicle of such Person.
“Person” means any natural person, sole proprietorship, partnership, trust, unincorporated association, corporation, limited liability company, entity or Governmental Entity.
“Piggyback Registration” has the meaning set forth in Section 4.2(a).
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“Potential Takedown Participant” has the meaning set forth in Section 4.1(d).
“Prospectus” means the prospectus included in any Registration Statement, all amendments (including post-effective amendments) and supplements to such prospectus, and all material incorporated by reference in such prospectus.
“PubCo” has the meaning set forth in the Preamble.
“Registrable Securities” means (a) any shares of Class A Common Stock, including Class A Common Stock (i) to be issued pursuant to the LLC Agreement upon exchange of Common Units (along with the cancelation of an equal number of shares of Class V Common Stock), and (ii) to be issued as a result of the conversion of shares of Class B Common Stock, (b) any Warrants or any shares of Class A Common Stock issued or issuable upon the exercise thereof and (c) any Equity Securities of PubCo or any Subsidiary of PubCo that may be issued or distributed or be issuable with respect to the securities referred to in clauses (a) or (b) by way of conversion, dividend, stock split or other distribution, merger, consolidation, exchange, recapitalization or reclassification or similar transaction, in each case held by a Holder, other than any security received pursuant to an incentive plan adopted by PubCo on or after the Closing Date; provided, however, that any such Registrable Securities shall cease to be Registrable Securities to the extent (A) a Registration Statement with respect to the sale of such Registrable Securities has become effective under the Securities Act and such Registrable Securities have been sold, transferred, disposed of or exchanged in accordance with the plan of distribution set forth in such Registration Statement, (B) such Registrable Securities shall have ceased to be outstanding or (C) such Registrable Securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.
“Registration” means a registration, including any related Shelf Takedown, effected by preparing and filing a registration statement, prospectus or similar document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such registration statement becoming effective.
“Registration Expenses” means the out-of-pocket expenses of a Registration, including the following:
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“Registration Statement” means any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.
“Representatives” means, with respect to any Person, any of such Person’s officers, directors, employees, agents, attorneys, accountants, actuaries, consultants, equity financing partners or financial advisors or other Person acting on behalf of such Person.
“Requesting Holder” means any Equityholder requesting piggyback rights pursuant to Section 4.2 of this Agreement with respect to an Underwritten Shelf Takedown.
“Restricted Common Units” has the meaning set forth in the Recitals.
“SEC” means the United States Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and any successor thereto, as the same shall be in effect from time to time.
“Shelf” has the meaning set forth in Section 4.1(a).
“Shelf Registration” means a registration of securities pursuant to a Registration Statement filed with the SEC in accordance with and pursuant to Rule 415 promulgated under the Securities Act (or any successor rule then in effect).
“Shelf Takedown” means an Underwritten Shelf Takedown or any proposed transfer or sale using a Registration Statement, including a Piggyback Registration.
“Shelf Takedown Notice” has the meaning set forth in Section 4.1(d).
“Shelf Takedown Request” has the meaning set forth in Section 4.1(c).
“SPA” has the meaning set forth in the Recitals.
“Special Holder” means each of the Sponsor, the Founder Holders, each Elliott Equityholder, each IVP Equityholder and each BluJay Equityholder, at such times as such Party is a Holder.
“Sponsor” means CC Neuberger Principal Holdings I Sponsor LLC, or, upon its dissolution, the Founder Holders.
“Sponsor Director” has the meaning set forth in Section 3.1(a).
“Sponsor Representative” means CC Neuberger Principal Holdings I Sponsor LLC or, after the dissolution of CC Neuberger Principal Holdings I Sponsor LLC, such other Person who is an Affiliate of one or more of the Founder Holders, who is identified as the replacement Sponsor Representative by the then existing Sponsor Representative giving prior written notice to PubCo, the IVP Representative, the Elliott Equityholders, the FP Representative and the Temasek Equityholder.
“Subsequent Shelf Registration” has the meaning set forth in Section 4.1(b).
“Subsidiaries” means, of any Person, any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than fifty percent (50%) of the voting power
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or equity is owned or controlled directly or indirectly by such Person, or one (1) or more of the Subsidiaries of such Person, or a combination thereof.
“Temasek Director” has the meaning set forth in Section 3.1(a).
“Temasek Equityholder” has the meaning set forth in the Preamble.
“Transfer” means, when used as a noun, any voluntary or involuntary, direct or indirect, transfer, sale, pledge, hedge, encumbrance, or hypothecation or other disposition, contract or legally binding agreement to undertake any of the foregoing, by the Transferor (whether by operation of law or otherwise) and, when used as a verb, the Transferor voluntarily or involuntarily, directly or indirectly, transfers, sells, pledges, hedges, encumbers or hypothecates or otherwise disposes of (whether by operation of law or otherwise), contracts or agrees (in a legally binding manner) to do any of the foregoing, including, in each case, (a) the establishment or increase of a put equivalent position or liquidation with respect to, or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act with respect to, any security or (b) entry into any swap or other arrangement that transfers to another Person, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise. The terms “Transferee,” “Transferor,” “Transferred,” and other forms of the word “Transfer” shall have the correlative meanings.
“Underwriter” means any investment banker(s) and manager(s) appointed to administer the offering of any Registrable Securities as principal in an Underwritten Offering.
“Underwritten Offering” means a Registration in which securities of PubCo are sold to an Underwriter for distribution to the public.
“Underwritten Shelf Takedown” has the meaning set forth in Section 4.1(f).
“Voting Securities” means Equity Securities of PubCo which are entitled to vote generally in the election of directors to the Board.
“Warrants” means the following outstanding warrants of PubCo, each exercisable for one share of Class A Common Stock, (a) warrants to purchase 10,280,000 shares of Class A Common Stock issued to the Sponsor pursuant to that certain private placement warrants purchase agreement, dated April 28, 2020, by and among the Sponsor and PubCo, for a purchase price of $11.50 per warrant and (b) warrants to purchase 5,000,000 shares of Class A Common Stock issued to NBOKS pursuant to the Forward Purchase Agreement.
“Well-Known Seasoned Issuer” has the meaning set forth in Rule 405 promulgated by the SEC pursuant to the Securities Act.
“Withdrawal Notice” has the meaning set forth in Section 4.1(f).
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REPRESENTATIONS AND WARRANTIES
Each of the Parties to this Agreement hereby represents and warrants to each other Party to this Agreement that as of the date such Party executes this Agreement:
GOVERNANCE
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Any vacancies existing on the Board as of the date hereof shall be filled in accordance with Section 3.1(g). The initial term of the Class I directors shall expire immediately following PubCo’s 2021 annual meeting of stockholders at which directors are elected. The initial term of the Class II directors shall expire immediately following PubCo’s 2022 annual meeting of stockholders at which directors are elected. The initial term of the Class III directors shall expire immediately following PubCo’s 2023 annual meeting at which directors are elected.
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Economic Interests Beneficially Owned by the IVP Equityholders (and their Permitted Transferees) as a Percentage of the Economic Interests Held by the IVP Equityholders immediately after the Closing | Number of IVP Directors |
85% or greater | 3 |
66% or greater, but less than 85% | 2 |
33% or greater (or, if greater, 2% of the Voting Securities of Pubco), but less than 66% | 1 |
Less than the greater of 33% and 2% of the Voting Securities of PubCo | 0 |
Economic Interests Beneficially Owned by the Sponsor (and its Permitted Transferees) as a Percentage of the Economic Interests Beneficially Owned by CC Capital immediately after the Closing | Number of Sponsor Directors |
85% | 5 |
68% | 4 |
51% | 3 |
34% | 2 |
17% | 1 |
0% | 0 |
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PubCo shall take all Necessary Action to include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected, one individual designated by the FP Representative that, if elected, will result in the Francisco Partners Equityholders having one (1) director serving on the Board.
the FP Representative shall no longer be entitled to designate a FP Director and the Francisco Partners Equityholders and their Permitted Transferees cannot subsequently become entitled to designate a FP Director as a result of their acquisition of Beneficial Ownership of additional Economic Interests in PubCo. The Parties agree that, during the two (2) years following the Completion Date, the Francisco Partners Equityholders will not be required to cause the FP Director to tender his or her resignation for so long as the Francisco Partners Equityholders and their Permitted Transferees Beneficially Own Economic Interests in PubCo representing 100% of the Economic Interests held by the Francisco Partners Equityholders immediately after Completion.
in either case, PubCo shall take all Necessary Action to include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected, one individual designated by the Temasek Equityholder that, if elected, will result in the Temasek Equityholder having one (1) director serving on the Board; provided, that after the Temasek Equityholder and its Permitted Transferees no longer Benefcially Owns Economic Interests in PubCo representing:
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the Temasek Equityholder shall no longer be entitled to designate a Temasek Director and the Temasek Equityholder and its Permitted Transferees cannot subsequently become entitled to designate a Temasek Director as a result of their acquisition of Beneficial Ownership of additional Economic Interests in PubCo. The Parties agree that, during the two (2) years following the Completion Date, the Temasek Equityholder will not be required to cause the Temasek Director to tender his or her resignation for so long as the Temasek Equityholder and its Permitted Transferees Beneficially Own Economic Interests in PubCo representing 100% of the Economic Interests held by the Temasek Equityholder immediately after Completion.
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THESE SECURITIES ARE SUBJECT TO THE RESTRICTIONS SET FORTH IN THE INVESTOR RIGHTS AGREEMENT, DATED FEBRUARY 4, 2021, AS AMENDED (THE “INVESTOR RIGHTS AGREEMENT”), BY AND AMONG E2OPEN PARENT HOLDINGS, INC. (THE “COMPANY”), CC NEUBERGER PRINCIPAL HOLDINGS I SPONSOR LLC AND THE OTHER PARTIES NAMED THEREIN, AS THE SAME MAY BE AMENDED OR RESTATED FROM TIME TO TIME (COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY AND SHALL BE PROVIDED FREE OF CHARGE TO ANY PARTY MAKING A BONA FIDE REQUEST THEREFOR). AND NO TRANSFER OF THESE SECURITIES WILL BE VALID OR EFFECTIVE UNTIL ANY CONDITIONS CONTAINED IN THE INVESTOR RIGHTS AGREEMENT, IF ANY, HAVE BEEN FULFILLED.
REGISTRATION RIGHTS
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Notwithstanding anything to the contrary in this Section 4.2(b), in the event a Demanding Holder has submitted notice for a bona fide Underwritten Shelf Takedown and all sales pursuant to such Underwritten Shelf Takedown pursuant to Section 4.1 have not been effected in accordance with the applicable plan of distribution or submitted a Withdrawal Notice prior to such time that PubCo has given written notice of a Piggyback Registration to all Special Holders and PEM Equityholders pursuant to this Section 4.2, then any reduction in the number of Registrable Securities to be offered in such offering shall be determined in accordance with Section 4.1(e), instead of this Section 4.2(b).
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LOCK-UP
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GENERAL PROVISIONS
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if to the PubCo, to: | ||
| ||
| c/o E2open, LLC | |
| 9600 Great Hills Trail, Suite 300E | |
| Austin, TX 78759 | |
| Attention: | Michael Farlekas |
|
| Laura Fese |
| Email: | Michael.Farlekas@e2open.com |
|
| Laura.Fese@e2open.com |
with a copy (which shall not constitute notice) to: | ||
| ||
| Willkie Farr & Gallagher LLP | |
| 787 Seventh Avenue | |
| New York, NY 10019 | |
| Attention: | Morgan D. Elwyn |
|
| Robert A. Rizzo |
|
| Claire James |
| Email: | melwyn@willkie.com |
|
| rrizzo@willkie.com |
|
| cejames@willkie.com |
and
| Kirkland & Ellis LLP | |
| 601 Lexington Avenue | |
| New York, NY 10022 | |
| Attention: | Lauren M. Colasacco, P.C. |
|
| Frances D. Dales |
|
| Peter Seligson |
| Email: | lauren.colasacco@kirkland.com |
|
| frances.dales@kirkland.com |
|
| peter.seligson@kirkland.com |
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if to the IVP Equityholders, to: | ||
| ||
| c/o Insight Venture Management, LLC | |
| 1114 Avenue of the Americas, 36th Floor | |
| New York, NY 10036 | |
| Attention: | Andrew Prodromos |
| Email: | aprodromos@insightpartners.com |
with a copy (which shall not constitute notice) to: | ||
| ||
| Willkie Farr & Gallagher LLP | |
| 787 Seventh Avenue | |
| New York, NY 10019 | |
| Attention: | Morgan D. Elwyn |
|
| Robert A. Rizzo |
|
| Claire James |
| Email: | melwyn@willkie.com |
|
| rrizzo@willkie.com |
|
| cejames@willkie.com |
if to the Elliott Equityholders, to: | ||
| ||
| c/o Elliott Investment Management LP | |
| Phillips Point, East Tower | |
| 777 S. Flagler Drive, Suite 1000 | |
| West Palm Beach, FL 33401 | |
| Attention: | Isaac Kim |
| Email: | iKim@egc-capital.com |
with a copy (which shall not constitute notice) to: | ||
| ||
| Gibson, Dunn & Crutcher LLP | |
| 200 Park Avenue | |
| New York, NY 10166 | |
| Attention: | Richard Birns |
| Email: | RBirns@gibsondunn.com |
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if to the PEM Equityholders, to: | ||
| ||
| c/o Performance Equity Management, LLC | |
| 5 Greenwich Office Park, Third Floor | |
| Greenwich, CT 06831 | |
| Attention: | Frank Brenninkmeyer |
| Email: | FBrenninkmeyer@perform-equity.com |
with a copy (which shall not constitute notice) to: | ||
| ||
| Nixon Peabody LLP | |
| 55 West 46th Street | |
| New York, NY 10036 | |
| Attention: | Ted Ughetta |
| Email: | tughetta@nixonpeabody.com |
if to Francisco Partners Equityholders, to: | ||
| ||
| 207 Sloane Street, 2nd Floor | |
| London, SW1X 9QX | |
| United Kingdom | |
| Attention: | Deep Shah |
| Email: | Shah@franciscopartners.com |
with a copy (which shall not constitute notice) to: | ||
| ||
| Latham & Watkins (London) LLP | |
| 99 Bishopsgate, London EC2M 3XF | |
| United Kingdom | |
| Attention: | Kem Ihenacho and Cory Tull |
| Email: | Kem.Ihenacho@lw.com and Cory.Tull@lw.com |
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if to Temasek Equityholder, to: | ||
| ||
| c/oTemasek Capital Management Pte Ltd | |
| 60B Orchard Road, #06-18 Tower 2 | |
| The Atrium@Orchard | |
| Singapore 238891 | |
| Attention: | Fock Wai Hoong and Martin Fichtner |
| Email: | waihoong@temasek.com.sg and martinfichtner@temasek.com.sg |
with a copy (which shall not constitute notice) to: | ||
| ||
| Debevoise & Plimpton LLP | |
| 919 Third Avenue | |
| New York, NY 10011 | |
| Attention: | Kevin M. Schmidt |
| Email: | kmschmidt@debevoise.com |
if to the Sponsor or the CCNB1 Independent Directors, as applicable, to: | ||
| ||
| Kirkland & Ellis LLP | |
| 601 Lexington Avenue | |
| New York, NY 10022 | |
| Attention: | Lauren M. Colasacco, P.C. |
|
| Frances D. Dales |
|
| Peter Seligson |
| Email: | lauren.colasacco@kirkland.com |
|
| frances.dales@kirkland.com |
|
| peter.seligson@kirkland.com |
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with a copy (which shall not constitute notice) to: | ||
| ||
| Neuberger Berman Investment Advisers LLC | |
| 1290 Avenue of the Americas | |
| New York, New York 10104 | |
| Attention: | Lawrence Kohn |
|
| Ralph DeFeo |
|
| Ephraim Lemberger |
| Email: | lawrence.kohn@nb.com |
|
| ralph.defeo@nb.com |
|
| ephraim.lemberger@nb.com |
with a copy (which shall not constitute notice) to: | ||
| ||
| Sidley Austin LLP | |
| 787 Seventh Avenue | |
| New York, New York 10019 | |
| Attention: | Jennifer Spiegel |
| Email: | jspiegel@sidley.com |
if to NBOKS, to: | ||
| ||
| Neuberger Berman Investment Advisers LLC | |
| 1290 Avenue of the Americas | |
| New York, New York 10104 | |
| Attention: | Lawrence Kohn |
|
| Ralph DeFeo |
|
| Ephraim Lemberger |
| Email: | lawrence.kohn@nb.com |
|
| ralph.defeo@nb.com |
|
| ephraim.lemberger@nb.com |
with a copy (which shall not constitute notice) to: | ||
| ||
| Sidley Austin LLP | |
| 787 Seventh Avenue | |
| New York, New York 10019 | |
| Attention: | Jennifer Spiegel |
| Email: | jspiegel@sidley.com |
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[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the Parties has duly executed this Agreement as of the Effective Date.
PUBCO: | |
| |
E2OPEN PARENT HOLDINGS, INC. (f/k/a CC NEUBERGER PRINCIPAL HOLDINGS I) | |
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By: | /s/ Laura L. Fese |
Name: | Laura L. Fese |
Title: | Executive Vice President and General Counsel |
SPONSOR: | |
| |
CC NEUBERGER PRINCIPAL HOLDINGS I SPONSOR LLC | |
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By: | /s/ Douglas Netwon |
Name: | Douglas Newton |
Title: | Authorized Signatory |
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EQUITYHOLDERS: | |
| |
Insight Venture Partners Growth-Buyout Coinvestment Fund (Cayman), L.P. | |
|
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By: | Insight Venture Associates Growth-Buyout Coinvestment, L.P., its General Partner |
By: | Insight Venture Associates Growth-Buyout Coinvestment, Ltd., its General Partner |
|
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By: | /s/ Andrew Prodromos |
Name: | Andrew Prodromos |
Title: | Authorized Signatory |
Insight Venture Partners Growth-Buyout Coinvestment Fund (Delaware), L.P. | |
|
|
By: | Insight Venture Associates Growth-Buyout Coinvestment, L.P., its General Partner |
By: | Insight Venture Associates Growth-Buyout Coinvestment, Ltd., its General Partner |
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By: | /s/ Andrew Prodromos |
Name: | Andrew Prodromos |
Title: | Authorized Signatory |
Insight Venture Partners (Cayman) IX, L.P. | |
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|
By: | Insight Venture Associates IX, L.P., its General Partner |
By: | Insight Venture Associates IX, Ltd., its General Partner |
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By: | /s/ Andrew Prodromos |
Name: | Andrew Prodromos |
Title: | Authorized Signatory |
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EQUITYHOLDERS (Conyinued): | |
| |
Insight Venture Partners (Delaware) IX, L.P. | |
|
|
By: | Insight Venture Associates IX, L.P., its General Partner |
By: | Insight Venture Associates IX, Ltd., its General Partner |
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By: | /s/ Andrew Prodromos |
Name: | Andrew Prodromos |
Title: | Authorized Signatory |
Insight E2open Aggregator, LLC | |
|
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|
|
By: | /s/ Andrew Prodromos |
Name: | Andrew Prodromos |
Title: | Authorized Signatory |
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EQUITYHOLDERS (Continued): | |
| |
Francisco Partners GP III Management (Cayman) Limited, acting in its capacity as general partner of | |
Francisco Partners GP III (Cayman) L.P., acting in its capacity as general partner of | |
| |
FRANCISCO PARTNERS III (CAYMAN), L.P. | |
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|
|
By: | /s/ Deep Shah |
Name: | Deep Shah |
Title: | Authorized Signatory |
Francisco Partners GP III Management (Cayman) Limited, acting in its capacity as general partner of | |
Francisco Partners GP III (Cayman) L.P., acting in its capacity as general partner of | |
| |
FRANCISCO PARTNERS PARALLEL FUND III (CAYMAN), L.P. | |
|
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By: | /s/ Deep Shah |
Name: | Deep Shah |
Title: | Authorized Signatory |
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EQUITYHOLDERS (Continued): | |
| |
ANDERSON INVESTMENTS PTE. LTD. | |
|
|
|
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By: | /s/ Fock Wai Hoong |
Name: | Fock Wai Hoong |
Title: | Authorised Signatory |
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FOUNDER HOLDERS: | |
| |
CC NB SPONSOR 1 HOLDINGS LLC | |
|
|
|
|
By: | /s/ Matthew Skurbe |
Name: | Matthew Skurbe |
Title: | Authorized Signatory |
NEUBERGER BERMAN OPPORTUNISTIC CAPITAL SOLUTIONS MASTER FUND LP | |
| |
By: Neuberger Berman Investment Advisers LLC, its investment adviser | |
|
|
|
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By: | Charles Kantor |
Name: | Charles Kantor |
Title: | Managing Director |
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Exhibit A
Form of Joinder
This Joinder (this “Joinder”) to the Amended and Restated Investor Rights Agreement (each as defined below), made as of , is between (“Transferor”) and (“Transferee”).
WHEREAS, as of the date hereof, Transferee is acquiring Registrable Securities (the “Acquired Interests”) from Transferor;
WHEREAS, Transferor is a party to that certain Amended and Restated Investor Rights Agreement, dated as of September 1, 2021, among E2open Parent Holdings, Inc. (“PubCo”) and the other persons party thereto (the “Investor Rights Agreement”); and
WHEREAS, Transferee is required, at the time of and as a condition to such Transfer, to become a party to the Investor Rights Agreement by executing and delivering this Joinder, whereupon such Transferee will be treated as a Party (with the same rights and obligations as the Transferor) for all purposes of the Investor Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective covenants and agreements set forth herein, and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1.1 Definitions. To the extent capitalized words used in this Joinder are not defined in this Joinder, such words shall have the respective meanings set forth in the Investor Rights Agreement.
Section 1.2 Acquisition. The Transferor hereby Transfers to the Transferee all of the Acquired Interests.
Section 1.3 Joinder. Transferee hereby acknowledges and agrees that (a) such Transferee has received and read the Investor Rights Agreement, (b) such Transferee is acquiring the Acquired Interests in accordance with and subject to the terms and conditions of the Investor Rights Agreement and (c) such Transferee will be treated as a Party (with the same rights and obligations as the Transferor) for all purposes of the Investor Rights Agreement.
Section 1.4 Notice. Any notice, demand or other communication under the Investor Rights Agreement to Transferee shall be given to Transferee at the address set forth on the signature page hereto in accordance with Section 6.6 of the Investor Rights Agreement.
Section 1.5 Governing Law. This Joinder shall be governed by and construed in accordance with the law of the State of Delaware.
Section 1.6 Counterparts; Electronic Delivery. This Joinder may be executed and delivered in one or more counterparts, by fax, email or other electronic transmission, each of which shall be deemed an original and all of which shall be considered one and the same agreement.
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IN WITNESS WHEREOF, this Joinder has been duly executed and delivered by the parties as of the date first above written.
[TRANSFEROR] | |
| |
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By: |
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Name: |
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Title: |
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[TRANSFEREE] | |
| |
| |
By: |
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Name: |
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Title: |
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Address for notices:
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