Exhibit 10.1
Execution Version
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of March 2, 2022 (this “Agreement”), is made and entered into between E2open Parent Holdings, Inc., a Delaware corporation (“Issuer”), and Logistyx Holdings, LLC, a Delaware limited liability company (“SellerCo”) and the undersigned parties listed under Holders on the signature page hereto (each such party, together with SellerCo and any person or entity who hereafter becomes a party to this Agreement pursuant to Section 4.9 of this Agreement, a “Holder” and collectively the “Holders”). Certain terms used in this Agreement are defined in Section 1.1.
W I T N E S S E T H:
WHEREAS, pursuant to that certain Membership Interest Purchase Agreement, dated as of the date hereof (the “MIPA”), by and among E2open, LLC, a Delaware limited liability company and wholly-owned subsidiary of Issuer (“Purchaser”), SellerCo, Logistyx Technologies, LLC, a Delaware limited liability company (the “Company”), and solely for the purposes of the articles and sections of the MIPA listed therein, Issuer, SellerCo will sell to Purchaser 100% of the Membership Interests and Purchaser will purchase from SellerCo 100% of the Membership Interests; and
WHEREAS, pursuant to the terms of the MIPA, Purchaser may elect to pay SellerCo at the Second Payment Date, up to a specified portion of the Second Payment Amount in shares of Issuer common stock, $0.0001 par value per share (the “Issuer Common Stock”); and
WHEREAS, pursuant to the terms of the MIPA, Purchaser may elect to pay to SellerCo at the Third Payment Date, up to a specified portion of the Third Payment Amount in shares of Issuer Common Stock; and
WHEREAS, the Issuer wishes to grant certain registration rights with respect to the shares of Issuer Common Stock that may be issued to SellerCo pursuant to the MIPA, on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
DEFINITIONS
“Business Day” means any day other than a Saturday, Sunday or any other day on which banking institutions in the State of New York are not open for the transaction of normal banking business.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Holders” shall have the meaning given in the Preamble.
1
“register,” “registered” and “registration” refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act, and the declaration or ordering of the effectiveness of such registration statement by the SEC.
“Registrable Securities” means (a) the Second Payment Registrable Securities, (b) the Third Payment Registrable Securities, and (c) any other equity security of the Company issued or issuable with respect to the Second Payment Registrable Securities and Third Payment Registrable Securities by way of a share capitalization or share split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization.
“Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Second Payment Registrable Securities” means the shares of Issuer Common Stock, if any, issued on the Second Payment Date pursuant to the MIPA; provided, however, that any such shares of Issuer Common Stock that, pursuant to Section 3.1, no longer have registration rights hereunder shall not be considered Registrable Securities.
“Shelf Registration Statement” means a registration statement on Form S-3, or if the Company is ineligible to use Form S-3, then a Form S-1, under the Securities Act providing for an offering to be made on a continuous or delayed basis pursuant to Rule 415 under the Securities Act in accordance with the plan and method of distribution set forth in the prospectus included in such registration statement.
“Third Payment Registrable Securities” means the shares of Issuer Common Stock, if any, issued on the Third Payment Date pursuant to the MIPA; provided, however, that any such shares of Issuer Common Stock that, pursuant to Section 3.1, no longer have registration rights hereunder shall not be considered Registrable Securities.
REGISTRATION RIGHTS
2
3
4
5
6
7
8
If indemnification is available under this Section 2.5, the indemnifying parties shall indemnify each indemnified party to the full extent provided in Section 2.5(a) and Section 2.5(b) without regard to the relative fault of said indemnifying party or indemnified party or any other equitable consideration provided for in this Section 2.5(d).
TERMINATION
9
MISCELLANEOUS
if to Issuer, to: |
E2open Parent Holdings, Inc. |
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 to (which shall not constitute notice): |
Troutman Pepper Hamilton Sanders LLP |
3000 Two Logan Square |
18th and Arch Streets |
Philadelphia, PA 19103 |
Attention: P. Thao Le and David Meyers |
Email: Thao.Le@troutman.com; David.Meyers@troutman.com |
10
If to SellerCo, to: |
Logistyx Holdings, LLC |
c/o Kidd & Company |
1455 East Putnam Avenue |
Old Greenwich, CT 06870 |
Attention: Gerry DeBiasi |
Email: gdebiasi@kiddcompany.com
|
with a copy to (which shall not constitute notice): |
Proskauer Rose LLP |
Eleven Times Square |
New York, New York 10036 |
Attention: Michael E. Ellis |
Email: mellis@proskauer.com |
or to such other persons or at such other addresses as shall be furnished by either party by like notice to the other, and such notice or communication shall be deemed to have been given or made as of the date so delivered. If to any other Holder, at such Holder’s address or facsimile number as set forth in the Issuer’s books and records. No change in any of such addresses shall be effective insofar as notices under this Section 4.1 are concerned unless notice of such change shall have been given to such other party hereto as provided in this Section 4.1.
11
12
[The remainder of this page has been intentionally left blank]
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first written above.
ISSUER: | |
|
|
E2OPEN PARENT HOLDINGS, INC. | |
|
|
By: | /s/ Laura L. Fese |
Name: | Laura L. Fese |
Title: | EVP & Secretary |
14
SELLERCO: | |
|
|
LOGISTYX HOLDINGS, LLC | |
|
|
By: | /s/ Gerard DeBiasi |
Name: | Gerard DeBiasi |
Title: | Authorized Signatory |
15
EXHIBIT A
PLAN OF DISTRIBUTION
We are registering the shares of common stock of E2open Parent Holdings, Inc., par value $0.0001 per share, or the Common Stock, which we refer to herein as Shares, issued to the Selling Stockholder to permit the resale of these Shares by the holders of the Shares from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the Selling Stockholder of the Shares.
The Selling Stockholder may sell all or a portion of the Shares beneficially owned by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the Shares are sold through underwriters or broker-dealers, the Selling Stockholder will be responsible for underwriting discounts or commissions or agent’s commissions. The Shares may be sold on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale, in the over-the-counter market or in transactions otherwise than on these exchanges or systems or in the over-the-counter market and in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions. The Selling Stockholder may use any one or more of the following methods when selling shares:
The Selling Stockholder also may resell all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, as amended, or the Securities Act, as permitted by that rule, or Section 4(a)(1) under the Securities Act, if available, rather than under this prospectus, provided that they meet the criteria and conform to the requirements of those provisions.
Broker-dealers engaged by the Selling Stockholder may arrange for other broker-dealers to participate in sales. If the Selling Stockholder effect such transactions by selling Shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the Selling Stockholder or commissions from purchasers of the Shares for whom they may act as agent or to whom they may sell as principal. Such commissions will be in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction will not be in excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or markdown in compliance with FINRA Rule 2121.01.
16
The Selling Stockholder may transfer and donate the Shares in other circumstances in which case the transferees or donees, pledgees will be the selling beneficial owners for purposes of this prospectus.
Any broker-dealer or agents participating in the distribution of the Shares may be deemed to be “underwriters” within the meaning of Section 2(11) of the Securities Act in connection with such sales. In such event, any commissions paid, or any discounts or concessions allowed to, any such broker-dealer or agent and any profit on the resale of the shares purchased by them may be deemed to be underwriting commissions or discounts under the Securities Act.
The Selling Stockholder has informed the Company that it is not a registered broker-dealer and does not have any written or oral agreement or understanding, directly or indirectly, with any person to distribute the Shares. Upon the Company being notified in writing by the Selling Stockholder that any material arrangement has been entered into with a broker-dealer for the sale of Common Stock through a block trade, special offering, exchange distribution or secondary distribution or a purchase by a broker or dealer, a supplement to this prospectus will be filed, if required, pursuant to Rule 424(b) under the Securities Act, disclosing (i) the name of the Selling Stockholder and of the participating broker-dealer(s), (ii) the number of shares involved, (iii) the price at which such the Shares were sold, (iv) the commissions paid or discounts or concessions allowed to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any investigation to verify the information set out or incorporated by reference in this prospectus, and (vi) other facts material to the transaction.
Under the securities laws of some U.S. states, the Shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in some U.S. states the Shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.
There can be no assurance that the Selling Stockholder will sell any or all of the Shares registered pursuant to the shelf registration statement, of which this prospectus forms a part.
The Selling Stockholder and any other person participating in such distribution will be subject to applicable provisions of the Exchange Act and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the Shares by the Selling Stockholder and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the Shares to engage in market-making activities with respect to the Shares. All of the foregoing may affect the marketability of the Shares and the ability of any person or entity to engage in market-making activities with respect to the Shares.
We have agreed to pay certain expenses incurred in connection with the registration and sale of the Shares covered by this prospectus, including, among other things, all registration and filing fees (including SEC, Nasdaq and state blue sky registration and filing fees), printing expenses, and the fees and disbursements of our outside counsel and independent accountants, but excluding underwriting discounts and commissions.
17
EXHIBIT B
SELLING STOCKHOLDER
QUESTIONNAIRE RELATING TO
REGISTRATION OF
E2OPEN PARENT HOLDINGS, INC. COMMON STOCK
on rEGISTRATION sTATEMENT ON FORM S-3
TO: Logistyx Holdings, LLC
FROM: E2open Parent Holdings, Inc.
DATE: [__], 2022
This questionnaire (this “Questionnaire”) is being distributed in connection with the anticipated filing by E2open Parent Holdings, Inc. (the “Corporation”) with the Securities and Exchange Commission of a registration statement on Form S-3 (the “Registration Statement”), pursuant to which the Corporation intends to provide for the resale of certain shares (the “Shares”) of the Corporation’s common stock held by you as a Selling Stockholder.
The furnishing of accurate and complete responses to the questions posed in this Questionnaire is an extremely important part of the registration process. The inclusion of inaccurate or incomplete disclosures in the Registration Statement can result in potential liabilities, both civil and criminal, to the Corporation and to the individuals who furnish the information. Accordingly, you are advised to consult your own securities counsel regarding the consequences of being named as a Selling Stockholder, as well as the meaning or implication of any of the terminology used in this Questionnaire or as to the significance of any particular fact situation.
Please complete, sign, and return one copy of this Questionnaire by facsimile, email or overnight courier as soon as possible.
E2open Parent Holdings, Inc. | |
9600 Great Hills Trail, Suite 300E | |
Austin, TX 78759 | |
Attention: | Jennifer Grafton, Esq. |
Email: | jennifer.grafton@e2open.com |
The Corporation must receive a signed and fully completed questionnaire from the you in order to include your Shares in the Registration Statement. Please remember to make a copy of the completed Questionnaire for your files.
Please review Annex A for a list of defined terms, which are in bold/italics in this Questionnaire.
Please give a response to every question, indicating “None” or “Not Applicable” where appropriate. Each question should be answered based on information available to you as of the date you complete this Questionnaire. Please also promptly inform the Corporation if there is any change or inaccuracies in the information supplied in answer to this Questionnaire.
18
Full legal name of record holder: _________________________________________
Address of record holder: _______________________________________________
Identity of beneficial owner (if different than record holder): ___________________
Name of contact person: ________________________________________________
Telephone number of contact person: ______________________________________
Email address of contact person: __________________________________________
Yes ☐ No ☐
Yes ☐ No ☐
Yes ☐ No ☐
You must include shares Beneficially Owned as of the date you complete this Questionnaire.
Class of Security Number of Shares Record Holder of such Shares
________________________________________________________________
Yes ☐ No ☐
If you disclaim Beneficial Ownership, please explain why on a separate piece of paper.
19
3. If there are other securities of the Corporation held in the name of another person (for example, a trust or LLC) that the Selling Stockholder has the power to vote or sell or otherwise Beneficially Own, please also list below:
Class of Security Number of Shares Record Holder of such Shares
__________________________________________________________________
4. Is there any pledge, lien or charge of any kind against any of the Corporation’s securities Beneficially Owned by you? If “Yes,” please provide detailed information regarding such pledge, lien or charge on a separate piece of paper.
Yes ☐ No ☐
5. Is there any unresolved dispute regarding the Selling Stockholder’s ownership of the Corporation’s securities?
Yes ☐ No ☐
6. Is the Selling Stockholder the subject of a bankruptcy or insolvency proceeding, receivership, liquidation, reorganization, or other judicial proceeding?
Yes ☐ No ☐
7. With respect to any of the Corporation’s securities Beneficially Owned by you, do you have just “Voting Power” (the power to vote or direct the voting of such securities) or just “Investment Power” (the power to dispose or direct the disposition of such securities), rather than both Voting Power and Investment Power?
A situation wherein the “Voting Power” and “Investment Power” are held by different persons would arise, for example, where a voting trust is established under a trust agreement requiring the trustee to vote on all corporate matters but reserving to the grantor the power to direct the disposition of the securities. If you mark “Yes,” please provide detailed information regarding such powers on a separate piece of paper.
Yes ☐ No ☐
8. With respect to any of the Corporation’s securities Beneficially Owned by you, is the “Voting Power” or “Investment Power” not exercised exclusively by you (for example, shares held jointly with another person or shares subject to a voting trust)?
In any such instance, you must state whether the “Voting Power” or “Investment Power” is shared by another person with you, or exercised by another person exclusively, naming such person and describing his/her relationship to you and to the Corporation. If you mark “Yes,” please provide detailed information regarding such powers on a separate piece of paper.
Yes ☐ No ☐
9. Nature of Beneficial Ownership
20
a. Is the Selling Stockholder a natural person?
Yes ☐ No ☐
b. Is the Selling Stockholder required to file, or is it a wholly owned subsidiary of a company that is required to file, periodic and other reports (for example, Form 10K, 10-Q, 8-K) with the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act?
Yes ☐ No ☐
c. Is the Selling Stockholder an investment company, or a subsidiary of an investment company, registered under the Investment Company Act of 1940, as amended?
Yes ☐ No ☐
If a subsidiary, please identify the publicly held parent entity:
d. Please describe the ultimate controlling person or manager of the Selling Stockholder (publicly traded, privately owned, managed by another entity); and, if controlled or managed by another entity, provide the exact legal description of such entity (repeat this step until the last entity described is managed by a natural person, a reporting entity under the Securities Exchange Act of 1934, or an investment company registered under the Investment Company Act of 1940, as amended).
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
10. Please provide the names of each person or persons having voting and investment control over the Corporation’s securities that the entity owns (e.g., director(s), general partner(s), managing member(s), etc.).
___________________________________________________________________________
___________________________________________________________________________
1. If you, any of your associates, or any immediate family members had or will have any direct or indirect material interest in any transactions or series of transactions to which the Corporation or any of its subsidiaries was a party at any time since January 1, 2019, or in any currently proposed transactions or series of transactions in which the Corporation or any of its subsidiaries will be a party, in which the amount involved exceeds $120,000, please specify (a) the names of the parties to the transaction(s) and their relationship to you, (b) the nature of the interest in the transaction, (c) the amount involved in the transaction, and (d) the amount of the interest in the transaction. If the answer is “none,” please so state.
______________________________________________________________________
______________________________________________________________________
21
______________________________________________________________________
______________________________________________________________________
22
The undersigned consents to being named a Selling Stockholder in the Registration Statement. Further, the undersigned consents to the Corporation’s use and disclosure of the information contained herein in the Registration Statement and to the Corporation’s reliance on the information contained herein in connection therewith. The answers to the foregoing questions are true and accurate to the best of the undersigned’s knowledge and belief after reasonable investigation. The undersigned will promptly notify the Corporation if there are any material changes to, or inaccuracies in, the information provided subsequent to the date hereof for so long as the Corporation’s securities are Beneficially Owned by the undersigned.
The undersigned, duly authorized, has caused this Questionnaire to be executed and delivered as of the date above first written.
| LOGISTYX HOLDINGS, LLC | |
|
|
|
| By: |
|
| Name: |
|
| Title: |
|
|
|
|
Dated: |
|
|
23
Annex A
DEFINITION OF “AFFILIATE”
DEFINITION OF “BENEFICIAL OWNERSHIP”
Please note that either voting power or investment power, or both, is sufficient for you to be considered the beneficial owner of shares.
DEFINITION OF “Immediate Family member”
124137068v4
24