Exhibit 10.2
WAIVER AND SHARE SURRENDER AGREEMENT
This WAIVER AND SHARE SURRENDER AGREEMENT (this “Agreement”) is entered into as of December 13, 2021, by and among Gores Holdings VIII, Inc., a Delaware corporation (the “Company”), Gores Sponsor VIII LLC, a Delaware limited liability company (“Sponsor”), and each holder (including, for the avoidance of doubt, Sponsor) (each, a “Class F Holder” and, collectively, the “Class F Holders”) of shares of the Company’s Class F Common Stock, par value $0.0001 per share (the “Class F Common Stock”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, concurrently with the execution and delivery of this Agreement, the Company is entering into that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of the date hereof, pursuant to which, among other things, the Company will (a) acquire Footprint International Holdco, Inc., a Delaware corporation (“Footprint”), and (b) issue to the existing holders of Footprint’s capital stock shares of the Company’s Class A Common Stock, par value $0.0001 per share (the “Class A Common Stock” and, together with the Class F Common Stock, the “Common Stock”), on the terms and subject to the conditions set forth therein (collectively, the “Transactions”);
WHEREAS, Section 4.3(b)(i) of the Company’s Amended and Restated Certificate of Incorporation, dated as of February 24, 2021 (the “Amended and Restated Certificate”), provides that each share of Class F Common Stock shall be convertible into one share of Class A Common Stock (the “Initial Conversion Ratio”) (a) at any time and from time to time at the option of the holder thereof and (b) automatically upon the consummation of the Business Combination (as defined in the Amended and Restated Certificate);
WHEREAS, Section 4.3(b)(ii) of the Amended and Restated Certificate provides that the Initial Conversion Ratio shall be adjusted (the “Adjustment”) in the event that additional shares of Class A Common Stock, or equity-linked securities, are issued or deemed issued in excess of the amounts sold in the Company’s initial public offering and related to the closing of the initial Business Combination such that the Class F Holders shall continue to own 20% of the issued and outstanding shares of Common Stock after giving effect to such issuance (the “Adjustment Provision”);
WHEREAS, the Transactions will constitute a Business Combination under the Amended and Restated Certificate, and the issuance of Class A Common Stock to the existing holders of Footprint’s capital stock and the Subscribers in connection with the PIPE Investment (the “Issuance”) would result in an Adjustment to the Initial Conversion Ratio pursuant to the Adjustment Provision;
WHEREAS, in connection with the Transactions, the parties hereto desire to enter into this Agreement such that each Class F Holder irrevocably waives its right, upon conversion of the shares of Class F Common Stock held by it in connection with the Transactions, to receive additional shares of Class A Common Stock as a result of an Adjustment to the Initial Conversion Ratio pursuant to the Adjustment Provision caused by the Issuance, or caused by any other equity issuance by the Company after the date hereof and prior to the closing of the Transactions (a “Subsequent Issuance”); and
