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Exhibit 5 ROLLOVER AND SUPPORT AGREEMENT ROLLOVER AND SUPPORT AGREEMENT
(this “ Agreement ”), dated as of August 15, 2025, by and between Soho House & Co Inc., a Delaware corporation (the “ Company ”) and each of the stockholders of the Company listed on Schedule 1 attached hereto as holding the “ Owned Shares ” and “ Rollover Shares ” listed thereon (each, a “ Reinvestment Stockholder ” and collectively, the “ Reinvestment Stockholders ”).
WHEREAS
, the Company, EH Parent LLC, a Delaware limited liability company (“ Parent ”) and EH MergerSub Inc., a Delaware corporation and wholly-owned subsidiary of Parent (“ Merger Sub ”), are each party to that certain Agreement and Plan of Merger, dated as of August 15, 2025 (as amended, restated, supplemented or otherwise modified from time to time, the “ Merger Agreement ”), pursuant to which, among other things, upon the terms and conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Company, with the Company surviving such merger, upon the terms and subject to the conditions set forth therein (the “ Surviving Corporation ”);
WHEREAS
, the Company Board, acting on the recommendation of the Special Committee, has (a) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Support Agreements, are fair to, and in the best interests of, the Company and the Company Stockholders, including the Unaffiliated Company Stockholders, (b) approved and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Support Agreements, (c) approved and declared advisable the execution and delivery of the Merger Agreement by the Company, the performance by the Company of its covenants and other obligations thereunder, and the consummation of the Merger and the other transactions contemplated thereby, including the Support Agreements, upon the terms and subject to the conditions set forth therein, (d) directed that the adoption of the Merger Agreement be submitted to a vote of the Company Stockholders at the Company Stockholder Meeting, and (e) recommended that the Company Stockholders vote in favor of the adoption of the Merger Agreement at the Company Stockholder Meeting;
WHEREAS
, as of the date hereof, each Reinvestment Stockholder is the beneficial owner (which, for the purpose of this Agreement, shall have the meaning as defined in Rule 13d-3 under the Exchange Act; provided, that all options, warrants, restricted stock units and other convertible securities shall be included even if not exercisable within sixty (60) days of the date of determination) of Class A Common Stock, Class B Common Stock, SARs and/or RSUs, as set forth opposite such Reinvestment Stockholder's name on Schedule 1 hereto under the heading “Owned Shares” (with respect to each Reinvestment Stockholder, “ Class A Owned Shares ”, “ Class B Owned Shares ”, “ Owned SAR Award ”, and “ Owned RSU Award ”, respectively) (collectively, the “ Owned Shares ”);
WHEREAS
, each Reinvestment Stockholder desires to irrevocably designate as “Rollover Shares” for purposes of the Merger Agreement the number of its Owned Shares set forth opposite such Reinvestment Stockholder's name on Schedule 1 hereto under the heading “Rollover Shares” (with respect to each Reinvestment Stockholder, “ Class A Rollover Shares ”, “ Class B Rollover Shares ”, “ Rollover SAR Award ”, and “ Rollover RSU Award ”, respectively) (collectively, the “ Rollover Shares ”);
WHEREAS
, as a material inducement, and as a condition, to the willingness of Parent and the Company to enter into the Merger Agreement, the Reinvestment Stockholders are entering into this Agreement; and
WHEREAS
, all capitalized terms that are used but not defined herein have the respective meanings ascribed to them in the Merger Agreement.
NOW, THEREFORE
, in consideration of the promises and of the mutual consents and obligations hereinafter set forth and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the parties hereto hereby agree as follows:
Voting
(a) From the date of this Agreement until the Termination Date (as defined below), each Reinvestment Stockholder hereby irrevocably and unconditionally undertakes and agrees that at any annual or special meeting of the stockholders of the Company, including any adjournment or postponement thereof, or in any other circumstance, however called, and in connection with any action proposed to be taken by written consent of the stockholders of the Company, such Reinvestment Stockholder shall, and if applicable, cause its controlled Affiliates to, in each case to the fullest extent that its Owned Shares are entitled to vote thereon: (A) appear at each such meeting or otherwise cause all such Owned Shares to be counted as present thereat for purposes of determining a quorum, and (B) be present (in person or by proxy) and unconditionally and irrevocably vote (or cause to be voted), or deliver (or cause to be delivered) a written consent with respect to, all of its Owned Shares (i) in favor of adoption of the Merger Agreement and any other matters necessary for consummation of the Merger and the other transactions contemplated by the Merger Agreement, (ii) in favor of any proposal by the Company approved by the Company Board (upon the recommendation of the Special Committee) or the Special Committee to adjourn, recess or postpone any meeting of the shareholders of the Company to a later date that complies with Section 6.4 of the Merger Agreement, (iii) against any proposal, action or agreement that would reasonably be expected to (1) result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such Reinvestment Stockholder contained in this Agreement, or (2) result in any of the conditions set forth in the Merger Agreement not being satisfied or fulfilled on or before the Termination Date, (iv) against any recapitalization, reorganization, dissolution, liquidation, winding up or similar extraordinary transaction involving the Company (except as contemplated by the Merger Agreement), (v) against any Acquisition Proposal (or any proposal relating to an Acquisition Proposal) and (vi) against any other proposed action, agreement or transaction involving the Company that would reasonably be expected to impede, interfere with, materially delay, materially postpone, materially adversely affect or prevent the consummation of the transactions contemplated by the Merger Agreement. In the event that the Company and Parent agree to effectuate the transactions contemplated by the Merger Agreement by means of an all cash tender offer, each Reinvestment Stockholder shall tender (and shall not withdraw), or cause to be tendered (and cause to not to be withdrawn), all of its Owned Shares (other than Rollover Shares) pursuant to and in accordance with the terms of such tender offer prior to the time required for such Rollover Shares to be validly tendered (and not withdrawn) for acceptance in such tender offer. For the avoidance of doubt, each Reinvestment Stockholder shall retain at all times the right to vote any Owned Shares beneficially owned or owned of record by such Reinvestment Stockholder in such Reinvestment Stockholder's sole discretion, and without any other limitation, on any matters other than those explicitly set forth in this Section 1 that are at any time or from time to time presented for consideration to the Company's stockholders.
Irrevocable Proxy
(a) From the date of this Agreement until the Termination Date, each Reinvestment Stockholder irrevocably appoints Benedict Nwaeke and Andrew Carnie, and each of them as its attorney-in-fact and proxy with full power of substitution and re-substitution, to the full extent of Reinvestment Stockholder's voting rights with respect to all of such Reinvestment Stockholder's Owned Shares, which proxy is irrevocable (and as such shall survive and not be affected by the death, incapacity, mental illness or insanity of Reinvestment Stockholder) and which appointment is coupled with an interest, to (a) vote (or issue instructions to the record holder to vote) and (b) execute (or issue instructions to the record holder to execute) written consents with respect to, all of such Reinvestment Stockholder's Owned Shares in accordance with the provisions of Section 1 ; provided that each Reinvestment Stockholder's grant of the proxy contemplated by this Section 2(a) shall be effective if, and only if, a Reinvestment Stockholder fails to deliver (or cause the record holder to deliver) to the Secretary of the Company, at least two (2) Business Days prior to the applicable meeting or deadline for action by written consent, as applicable, a duly executed irrevocable proxy card or written consent, as applicable, directing that such Reinvestment Stockholder's Owned Shares be voted in accordance with Section 1 and the Company notifies the Reinvestment Stockholder in writing at least 24 hours in advance that such Person(s) intend to exercise their rights under this Section 2(a) . This proxy, if it becomes effective, is coupled with an interest, was given to secure the obligations of each Reinvestment Stockholder under Section 1 , was given in consideration of and as an additional inducement of Parent and the Company to enter into the Merger Agreement and shall be irrevocable, and each Reinvestment Stockholder agrees to execute any further agreement or form reasonably necessary to confirm and effectuate the grant of the proxy contained herein and hereby revokes any proxy previously granted by such Reinvestment Stockholder with respect to the Owned Shares.
(b) The irrevocable proxy and power of attorney granted by each Reinvestment Stockholder in this Section 2 shall not be terminated by any act of such Reinvestment Stockholder or other Reinvestment Stockholders, by operation of law or upon the occurrence of any other event other than upon the Termination Date, at which time such proxy shall automatically terminate, or pursuant to the last sentence of this Section 2(b) . The irrevocable proxy and power of attorney granted by each Reinvestment Stockholder in this Section 2 and such Reinvestment Stockholder's other obligations under this Agreement shall be binding upon such Reinvestment Stockholder's heirs, successors, legal representatives and permitted assigns. Parent and the Company (with the approval of the Special Committee) may terminate this proxy with respect to a Reinvestment Stockholder at any time at their mutual election by written notice provided to such Reinvestment Stockholder.
No Transfer; No Inconsistent Arrangements . Except as provided hereunder, each Reinvestment Stockholder shall not, directly or indirectly: (a) create or permit to exist any security interest, lien, charge, encumbrance, equity, claim, option or limitation of whatever nature and free of any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of the Owned Shares) (the “ Encumbrances ”), except as may exist (i) on the date hereof or may subsequently be created or exist in connection with any refinancing, refunding or replacement thereof or (ii) by reason of this Agreement or applicable securities laws, on any of such Reinvestment Stockholder 's Owned Share s; (b) transfer, sell, assign, gift, hedge, pledge or otherwise dispose of (including, for the avoidance of doubt, by depositing, submitting or otherwise tendering any such Owned Share s into any tender or exchange offer), or enter into any short sale, derivative arrangement, futures or forward contract or any other hedging or other derivative, swap, “put-class”, margin, securities lending or other transaction that has or reasonably would be expected to have the effect of changing, limiting, arbitraging or reallocating the economic benefits and risks of ownership of such security, with respect to (collectively, “ Transfer ”), any of such Reinvestment Stockholder's Owned Share s, or any right or interest therein (or consent to any of the foregoing); (c) enter into any Contract, option or other agreement, arrangement or understanding with respect to any Transfer of such Reinvestment Stockholder's Owned Share s or any interest therein; (d) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to any such Reinvestment Stockholder's Owned Share s; (e) deposit or permit the deposit of any of such Reinvestment Stockholder's Owned Shares into a voting trust or enter into a voting agreement or arrangement with respect to any of such Reinvestment Stockholder's Owned Shares or (f) take or permit any other action that would in any way restrict, delay, limit or interfere with the performance of such Reinvestment Stockholder's obligations hereunder or otherwise make any representation or warranty of such Reinvestment Stockholder herein untrue or incorrect. Any action taken in violation of the foregoing sentence shall be null and void ab initio. Notwithstanding the foregoing, each Reinvestment Stockholder may Transfer such Reinvestment Stockholder's Owned Shares (i) to any of its Affiliates, (ii) by will or intestacy, (iii) to any immediate family member (for purposes of this Agreement, “immediate family” shall mean any relationship by blood, current or former marriage, domestic partnership or adoption, not more remote than first cousin), (iv) to any trust or other entity or vehicle for the direct or indirect benefit of the Reinvestment Stockholder or the immediate family of the Reinvestment Stockholder for bona fide estate planning purposes or (v) to a partnership, limited liability company or other entity of which the Reinvestment Stockholder and/or any of the persons or entities in the immediately preceding sub-clauses (iii) or (iv) are the direct or indirect beneficial owners of all of the outstanding equity securities or similar interests; provided, that such Transfer shall be permitted only if all of the representations and warranties in this Agreement with respect to such Reinvestment Stockholder would be true and correct at the time of such Transfer and the transferee shall have executed and delivered to Parent and the Company a counterpart to this Agreement pursuant to which such transferee shall be bound by all of the terms and provisions of this Agreement and agree and acknowledge that such Person shall constitute a Reinvestment Stockholder for all purposes of this Agreement. If any involuntary Transfer of any of such Reinvestment Stockholder's Owned Shares shall occur (including a sale by such Reinvestment Stockholder's trustee in any bankruptcy, or a sale to a purchaser at any creditor's or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Owned Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement.
No Tender . Subject to Section 1, no Reinvestment Stockholder shall tender such Reinvestment Stockholder's Owned Shares into any tender or exchange offer commenced by a Person other than Parent, Merger Sub or any other Subsidiary of Parent.
Waiver of Certain Actions Each Reinvestment Stockholder hereby agrees not to bring, commence, institute, maintain, prosecute, voluntarily aid or participate in, and to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, the Company, any other party to the Merger Agreement or any of their respective successors (a) challenging the validity of, or seeking to enjoin or delay the operation of, any provision of this Agreement or the Merger Agreement or (b) alleging a breach of any duty of the board of directors of the Company in connection with the Merger Agreement, this Agreement or the transactions contemplated thereby or hereby (which includes the execution and delivery of this Agreement by such Reinvestment Stockholder, or the approval of the Merger Agreement by the Company Board, acting upon the recommendation of the Special Committee, or the Special Committee's recommendation that the Company Board approve the Merger Agreement), but excluding any such claim brought by a Reinvestment Stockholder following the Effective Time as a third party beneficiary under Section 9.6 of the Merger Agreement (it being understood and agreed that nothing in this Section 5 shall restrict or prohibit any Reinvestment Stockholder or any Affiliate thereof from participating as a defendant, asserting counterclaims (other than against Parent, the Company, any other party to the Merger Agreement or any of their respective successors) or asserting defenses, in any action or proceeding brought or claims asserted against it or any of its Affiliates relating to this Agreement, the Merger Agreement or the transactions contemplated hereby or thereby, or from enforcing its rights under this Agreement, the Merger Agreement, or any other agreement contemplated hereby or thereby).
Additional Shares . From the date of this Agreement until the Termination Date, in the event that any Reinvestment Stockholder acquires record or beneficial ownership of, or the power to vote or direct the voting of, any additional shares of Company Common Stock or other voting interests with respect to the Company, such shares or voting interests shall, without further action of the parties, be deemed Owned Shares and subject to the provisions of this Agreement as Owned Shares (but not, unless otherwise agreed in writing by such Reinvestment Stockholder, as Rollover Shares), the number of Owned Shares held by such Reinvestment Stockholders shall be deemed amended accordingly, and such shares or voting interests shall automatically become subject to the terms of this Agreement as Owned Shares (but not, unless otherwise agreed in writing by such Reinvestment Stockholder, as Rollover Shares). Each Reinvestment Stockholder shall notify the Company and Parent of any such event.
Waiver of Appraisal Rights . Each Reinvestment Stockholder hereby waives, to the full extent of the law, and agrees not to assert any appraisal rights (including under Section 262 of the DGCL) in connection with the Merger with respect to any and all Owned Shares held by the undersigned of record or beneficially owned.
No Solicitation; Acquisition Proposal . The first two sentences of Section 5.3(a) of the Merger Agreement are incorporated herein by reference and shall apply hereto mutatis mutandis (including for the avoidance of doubt, that any obligation of the “Company” set forth therein shall be construed as an obligation of each Reinvestment Stockholder solely as to itself and with respect to matters therein that are within such Reinvestment Stockholder's control).
Stockholder Capacity . Each Reinvestment Stockholder is entering into this Agreement solely in its capacity as the record holder or beneficial owner of such Reinvestment Stockholder's Owned Shares. Without limiting the terms of the Merger Agreement in any respect, nothing in this Agreement shall in any way attempt to limit or affect any actions taken by any of the Reinvestment Stockholder's or its Affiliates' designee(s) or beneficial owner(s) serving on the Board of Directors of the Company (solely to the extent in any such director's capacity as such) or any such Reinvestment Stockholder, solely to the extent in his or her capacity as a director, officer or employee of the Company, from complying with his or her fiduciary obligations solely to the extent acting in such person's capacity as a director, officer or employee of the Company. Without limiting the terms of the Merger Agreement in any respect, no action taken (or omitted to be taken) solely to the extent in any such capacity as a director, officer or employee shall be deemed to constitute a breach of this Agreement.
Commercially Reasonable Efforts
(a) Each Reinvestment Stockholder shall use their respective commercially reasonable efforts to take, or cause to be taken, any and all actions and to do, or cause to be done, and to assist Parent, the Company and the other parties to the Merger Agreement in doing, any and all things, necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby and thereby.
(b) For the avoidance of doubt, nothing in this Agreement shall excuse or vitiate, or be deemed or construed to excuse or vitiate the Company's obligation pursuant to Section 1 of the Stockholder Letter to use its reasonable best efforts to obtain additional equity funding after the date hereof.
Proxy Statement, Schedule 13E-3 and Other Required Company Filing . Each Reinvestment Stockholder hereby agrees to permit each of Parent and the Company to publish and disclose in the Proxy Statement, the Schedule 13E-3, any Other Required Company Filing or any Other Required Parent Filings any information concerning such Reinvestment Stockholder that is required or reasonable to be included therein and each Reinvestment Stockholder shall use its reasonable best efforts to furnish all such information concerning such party and its controlled Affiliates and provide the Company and Parent assistance, as may be reasonably requested by the Company or Parent to be included therein and will otherwise reasonably assist and cooperate with the Company or Parent in the preparation, filing and distribution of the Proxy Statement, any Other Required Company Filing or any Other Required Parent Filing, and the resolution of any comments received from the SEC. The Company shall use commercially reasonable efforts to provide the Reinvestment Stockholder and its counsel reasonable opportunity to review in advance any such Proxy Statement, Schedule 13E-3, Other Required Company Filing or Other Required Parent Filings and consider in good faith the views of the Reinvestment Stockholder, its counsel and other Representatives in connection therewith with respect to matters therein related to the Reinvestment Stockholder. To the knowledge of each Reinvestment Stockholder, the information supplied by such Reinvestment Stockholder for inclusion or incorporation by reference in the Proxy Statement, the Schedule 13E-3, any Other Required Filing or any Other Required Parent Filings will not, at the time that such information is provided, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
Public Statements Section 6.13 of the Merger Agreement is incorporated herein by reference and shall apply hereto mutatis mutandis (including for the avoidance of doubt, that any obligation of the “Company” set forth therein shall be construed as an obligation of each Reinvestment Stockholder).
Representations and Warranties of the Reinvestment Stockholders . Each Reinvestment Stockholder, severally but not jointly, represents and warrants (as of the date hereof and as of the Closing) to, and covenants and agrees with, and Company as follows:
(a) (i) Such Reinvestment Stockholder has all requisite power and authority (or capacity, in the case of a Shareholder who is a natural person) necessary to enter into, deliver and perform its obligations pursuant to this Agreement, (ii) such Reinvestment Stockholder (in the case of Reinvestment Stockholders who are not natural persons) is validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation, as applicable and (iii) such Reinvestment Stockholder's execution, delivery and performance of this Agreement has been duly authorized by it (in the case of Reinvestment Stockholders who are not natural persons).
(b) As of the date of this Agreement, there are no Legal Proceedings pending against, or, to the knowledge of such Reinvestment Stockholder, threatened against such Reinvestment Stockholder or any of such Reinvestment Stockholder's properties or assets before or by any Governmental Entity that could be expected to prevent or delay or impair the consummation by such Reinvestment Stockholder of the transactions contemplated by this Agreement or otherwise impair such Reinvestment Stockholder's ability to perform its obligations hereunder.
(c) Such Reinvestment Stockholder: (i) represents that the execution and delivery of this Agreement by such Reinvestment Stockholder and the consummation of the transactions contemplated hereby will not result in (A) in the event such Reinvestment Stockholder is an entity, any violation of its organizational documents, (B) any breach of, conflict with or violation of the terms or provisions of, or constitute a default under, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement instrument, permit, concession, franchise or license by which such Reinvestment Stockholder or such Reinvestment Stockholder's property is bound, (C) any violation by such Reinvestment Stockholder of any applicable judgment, order, notice, law, regulation or court decree or (D) any obligation of such Reinvestment Stockholder to file any notice or other filing with, or to obtain any consent, registration, approval, permit or authorization of or from any, governmental or regulatory authority of the United States, any state thereof or any foreign jurisdiction (except as may be required pursuant to the HSR Act and any other applicable Antitrust Laws); and (ii) represents that such Reinvestment Stockholder's principal place of business if an entity, or home address if an individual, is as set forth on the signature page hereof.
(d) Such Reinvestment Stockholder (i) is the record and beneficial owner of the Owned Shares set forth opposite such Reinvestment Stockholder's name on Schedule 1 and that the shares of Company Common Stock set forth opposite such Reinvestment Stockholder's name on Schedule 1 are all of the shares of Company Common Stock beneficially owned by such Reinvestment Stockholder, (ii) has good and valid title to such Owned Shares, free and clear of any Encumbrances (except as may exist by reason of this Agreement, applicable securities laws or as disclosed in the Company's proxy statement or in connection with any refinancing, refunding or replacement of the indebtedness disclosed therein) and (iii) has the full legal right, power and authority to designate the Rollover Shares as “Rollover Shares” under the Merger Agreement pursuant to the terms hereof. Other than the Owned Shares set forth opposite such Reinvestment Stockholder's name on Schedule 1 , the Reinvestment Stockholder does not beneficially or of record own any (x) shares of capital stock or voting securities of the Company, (y) securities of the Company convertible into or exchangeable for shares of capital stock or voting securities of the Company or (z) options or other rights to acquire from the Company any capital stock, voting securities or securities convertible into or exchangeable for capital stock or voting securities of the Company.
(e) Each Reinvestment Stockholder has the requisite voting power, power of disposition, power to issue instructions with respect to the matters set forth herein, and power to agree to all of the matters set forth in this Agreement necessary to take all actions required under this Agreement, in each case with respect to the Owned Shares, with no limitations, qualifications or restrictions on such rights, subject to applicable federal securities laws and those arising under the terms of this Agreement.
(f) All actions on the part of such Reinvestment Stockholder necessary for the consummation of the transactions contemplated hereby and the execution and delivery by such Reinvestment Stockholder of this Agreement and the performance of such Reinvestment Stockholder's obligations hereunder have been taken. This Agreement constitutes the valid and legally binding obligation of such Reinvestment Stockholder, enforceable against such Reinvestment Stockholder in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and, as to enforceability, by general principles of equity.
(g) As of the date hereof, except as set forth in the letter dated as of the date hereof by and between the Company and the Reinvestment Stockholders (the “ GS Rollover Side Letter ”), such Reinvestment Stockholders have not entered into any agreement to Transfer any Owned Shares and no Person has a right to acquire any of the Owned Shares held by such Reinvestment Stockholders.
(h) Such Reinvestment Stockholder is an “accredited investor” within the meaning of Rule 501(a) under the Securities Act, or an entity in which all of the equity holders are accredited investors within the meaning of Rule 501(a) under the Securities Act.
(i) Such Reinvestment Stockholder has knowledge and experience in financial and business matters and is capable of evaluating the merits and risks of an investment in Parent and of making an informed investment decision with respect thereto.
(j) Such Reinvestment Stockholder understands that its investment in Parent involves a high degree of risk and is able to bear the economic risk of such investment for an indefinite period of time, including the risk of a complete loss of such Reinvestment Stockholder's investment in such securities.
(k) Such Reinvestment Stockholder has had an opportunity to ask questions and receive answers concerning the terms and conditions of this Agreement and the transactions contemplated hereby and has had full access to such other information concerning Parent as it has reasonably requested.
(l) Such Reinvestment Stockholder has been afforded the opportunity to examine all documents related to and, if applicable, executed in connection with the transactions contemplated by the Merger Agreement and by this Agreement, which such Reinvestment Stockholder has requested to examine.
(m) No broker, investment bank, financial advisor or other Person is entitled to any broker's, finder's, financial adviser's or similar fee or commission in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of such Reinvestment Stockholder and that is subject to payment or reimbursement by the Company.
Representations and Warranties of Company . The Company hereby represents and warrants (as of the date hereof and as of the Closing) to, and covenants and agrees with, each Reinvestment Stockholder as follows:
(a) It is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all requisite legal power to enter into this Agreement and to perform its obligations hereunder and to own, lease and operate its properties and assets and to carry on its business as presently conducted.
(b) All corporate action on the part of the Company necessary for the execution and delivery by the Company of this Agreement and the performance of its obligations hereunder has been taken. This Agreement constitutes a valid and legally binding obligation of the Company enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors' rights generally and, as to enforceability, by general principles of equity.
(c) As of the date of this Agreement, there are no Legal Proceedings pending against, or, to the knowledge of the Company, threatened against the Company or any of the Company's properties or assets before or by any Governmental Entity that could be expected to prevent or delay or impair the consummation by the Company of the transactions contemplated by this Agreement or otherwise impair the Company's ability to perform its obligations hereunder.
(d) The execution, delivery and performance by the Company of this Agreement does not require any consent, approval, authorization or permit of, action by, filing with or notification to any Governmental Authority, other than any consent, approval, authorization, permit, action, filing or notification the failure of which to make or obtain would not prevent, materially restrict, limit or interfere with, or cause a material delay of, the performance of the Company's obligations hereunder.
(e) The execution and delivery by the Company of this Agreement and the performance of its obligations hereunder will not result in (i) any violation of its certificate of incorporation or bylaws, (ii) any breach of, conflict with or violation of the terms or provisions of, or constitute a default under, any trust agreement, loan or credit agreement, note, bond, mortgage, indenture, lease or other agreement, instrument, permit, concession, franchise or license by which it or its property is bound or (iii) any violation of any applicable judgment, order, notice, law, regulation or court decree.
Further Assurances . Each Reinvestment Stockholder shall, from time to time, execute and deliver, or cause to be executed and delivered, such additional or further consents, documents and other instruments as Parent or the Company may reasonably request to the extent necessary to effect the transactions contemplated by this Agreement.
Non-Survival of Representations, Warranties and Covenants . All the agreements, representations, warranties, covenants and agreements of the Reinvestment Stockholder in this Agreement shall not survive the Termination Date other than those contained within the provisions that the parties hereto have agreed will survive the termination of this Agreement pursuant to Section 18 , provided, that no termination will relieve any party hereto from any liability for any Willful and Material Breach of this Agreement occurring prior to such termination.
Notices . All notices and other communications hereunder must be in writing and will be deemed to have been duly delivered and received hereunder (i) four (4) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service, or (iii) immediately upon delivery by hand or by email transmission, in each case to the intended recipient as set forth below:
If to Company
Soho House & Co Inc.
180 Strand
London, United Kingdom WC2R 1EA
Attention: Benedict Nwaeke
Email:
with copies (which shall not constitute notice) to:
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
Attention: Samir Gandhi, John Butler and Ayo Badejo
Email:
Fried Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, NY 10004
Attention: Philip Richter and Alison McCormick
Email:
and to a Reinvestment Stockholder:
Goldman Sachs Asset Management, L.P.
200 West Street, 15 th Floor
New York, NY 10282
Attention: Dennis van Laer
Email:
with copies (which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention: Matthew Gilroy and Michael Hickey
Email:
Termination . This Agreement shall terminate automatically, without any notice or other action by any party hereto, upon the first to occur of (a) the valid termination of the Merger Agreement in accordance with its terms or (b) the Effective Time (the date of any such termination, the “ Termination Date ”). This Agreement may also be terminated with respect to an individual Reinvestment Stockholder upon the mutual written consent of Company (with the approval of the Special Committee and Parent) and such Reinvestment Stockholder. Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided however , that (i) nothing set forth in this Section 18 shall relieve any party from liability for any Willful and Material Breach of this Agreement prior to or in connection with the termination of this Agreement, and (ii) the provisions of Section 17 Section 19 and Section 21 shall survive any termination of this Agreement.
Assignment
(a) Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated, in whole or in part, by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties hereto, shall survive the dissolution, death or incapacity of any Reinvestment Stockholder, and shall be binding upon the parties' respective heirs, successors, legal representatives and permitted assigns. Any attempted assignment in violation of this Section 19 shall be null and void.
(b) The parties hereto hereby agree that their respective agreements and obligations set forth herein are solely for the benefit of the other parties hereto and their respective successors and permitted assigns, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any Person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under this Agreement.
No Ownership Interest . Nothing contained in this Agreement shall be deemed to vest in the Company any direct or indirect ownership or incidence of ownership of or with respect to the Owned Shares. All rights, ownership and economic benefits of and relating to the Owned Shares shall remain vested in and belong to the Reinvestment Stockholder, and the Company shall have no authority to exercise any power or authority to direct the Reinvestment Stockholder in the voting or disposition of any of the Owned Shares, except as otherwise provided herein.
Miscellaneous
(a) Defined Terms . Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.
(b) Amendment and Waiver . Subject to applicable law and subject to the other provisions of this Agreement, this Agreement may be amended or modified by the parties at any time by execution of an instrument in writing signed on behalf of (i) each Reinvestment Stockholder against whom the amendments will be effective, and (ii) Company with the approval of the Company Board (upon the recommendation of the Special Committee) or the Special Committee and Parent. Any agreement on the part of a party to any waiver will be valid only if set forth in an instrument in writing signed by such party. Any delay in exercising any right pursuant to this Agreement will not constitute a waiver of such right.
(c) Amendment, Waiver, Modification of Merger Agreement . The Merger Agreement and any agreements contemplated thereby may not be amended and no provision thereof waived or modified without the prior written consent of a Reinvestment Stockholder, if such amendment, waiver or modification (i) is material and adverse to such Reinvestment Stockholder, (ii) reduces the Per Share Price to be received by the Reinvestment Stockholder or (iii) changes the form of consideration to be received by such Reinvestment Stockholder in the Merger.
(d) Entire Agreement . This Agreement, together with the Merger Agreement (and the documents and instruments and other agreements among the parties as contemplated by or referred to therein) and the GS Rollover Side Letter constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, between the Reinvestment Stockholders and Company.
(e) Specific Performance . Except as otherwise provided herein, any and all remedies herein expressly conferred upon a Person will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law or equity upon such Person, and the exercise by a Person of any one remedy will not preclude the exercise of any other remedy. Irreparable damage would occur in the event that any provision of this Agreement were not performed in accordance with its specific terms or were otherwise breached, as money damages or other legal remedies would not be an adequate remedy for any such damages. Accordingly, prior to any valid termination of this Agreement in accordance with Section 18 , in the event of any breach or threatened breach by any party hereto of any of their respective covenants or obligations set forth in this Agreement, the counterparties shall be entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement, by the other (as applicable), and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the other under this Agreement, in each case without posting a bond or other security. Notwithstanding the foregoing, (a) Parent shall be entitled to an injunction or injunctions to prevent or restrain breaches or threatened breaches of this Agreement by the Reinvestment Stockholders and to specifically enforce the terms and provisions of this Agreement to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of the Reinvestment Stockholders under this Agreement, in each case without posting a bond or other security, and (b) Parent is an express third-party beneficiary of this Agreement. The exercise by Parent of any right to enforce this Agreement does not give rise to any other remedies, monetary or otherwise. The parties hereto agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law (in each case, including in connection with the exercise of Parent's third party beneficiary rights hereunder). Time shall be of the essence for purposes of this Agreement.
(f) Severability . In the event that any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect, and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
(g) Fees and Expenses . Except as otherwise agreed to in writing between the Company and the Reinvestment Stockholders, whether or not the transactions contemplated by this Agreement and the Merger Agreement are consummated, all fees and expenses incurred in connection with this Agreement and such transactions shall be paid by the party incurring or required to incur such fees or expenses. Concurrently with the execution of this Agreement, each Reinvestment Stockholder shall have provided Parent a good faith estimate as of the date hereof of the fees and expenses incurred or payable by such Reinvestment Stockholder in connection with this Agreement and the transactions contemplated hereby and that are subject to payment or reimbursement by the Company.
(h) Choice of Law . This Agreement shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Delaware. Any and all claims, suits, proceedings, controversies, and causes of action arising out of or relating to this Agreement (each, an “ Action ”), whether sounding in contract, tort, or statute, shall be governed by the internal laws of the State of Delaware, including its statutes of limitations, without giving effect to any conflict-of-laws or other rules (whether of the State of Delaware or any other jurisdiction) that would result in the application of the laws or statutes of limitations of a different jurisdiction other than the State of Delaware. Section 9.10(a) of the Merger Agreement is incorporated herein by reference and shall apply hereto mutatis mutandis
(i) MUTUAL WAIVER OF JURY TRIAL . EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, THE MERGER AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION.
(j) Counterparts . This Agreement may be executed in one or more counterparts (including by facsimile or electronic mail in .pdf, .tif, .gif, .jpg or similar attachment) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
(k) Interpretation . When a reference is made in this Agreement to an Article, a Section, Exhibit or Schedule, such reference shall be to an Article of, a Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “ include ”, “ includes ” or “ including ” are used in this Agreement, they shall be deemed to be followed by the words “ without limitation ”. The words “ hereof ”, “ herein ” and “ hereunder ” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “ date hereof ” when used in this Agreement shall refer to the date of this Agreement. The terms “ or ”, “ any ” and “ either ” are not exclusive. The word “ extent ” in the phrase “ to the extent ” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “ if ”. The word “ will ” shall be construed to have the same meaning and effect as the word “ shall ”. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or written consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Unless otherwise specifically indicated, all references to “ dollars ” or “ ” shall refer to the lawful money of the United States. References to a Person are also to its permitted assigns and successors.
(l) Construction . The parties agree that they have been represented by legal counsel during the negotiation and execution of this Agreement and therefore waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
(m) No Recourse . Notwithstanding anything that may be expressed or implied in this Agreement or otherwise, each party hereto covenants, agrees and acknowledges that no recourse under this Agreement or any documents or instruments delivered by any Person pursuant hereto or otherwise shall be had against any of Parent's, the Reinvestment Stockholders' or any of their or their respective Affiliates' former, current or future direct or indirect equity holders, controlling persons, stockholders, directors, officers, employees, agents, Affiliates, members, financing sources, managers, general or limited partners or assignees (each a “ Related Party ” and collectively, the “ Related Parties ”), in each case other than (subject, for the avoidance of doubt, to the provisions of this Agreement) each party hereto or any of its respective assignees under this Agreement, whether by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any of the Related Parties, as such, for any obligation or liability of any party hereto or any of its respective assignees under this Agreement or any documents or instruments delivered by any Person pursuant hereto for any claim based on, in respect of or by reason of such obligations or liabilities or their creation; provided, however, that nothing in this Section 21(m) shall relieve or otherwise limit the liability of any party hereto or any of its respective assignees for any breach or violation of its obligations under such agreements, documents or instruments.
(n) Tax Treatment . Consistent with Section 6.21 of the Merger Agreement, each of the Reinvestment Stockholders hereby acknowledge and agree that, for U.S. federal income tax purposes, the Reinvestment Stockholders shall be treated as retaining their ownership interests in the Company represented by the Rollover Shares during the course of and after the Merger. Each of the Reinvestment Stockholders shall not (and shall cause each of their respective Affiliates not to) take any position with a taxing authority, on any Tax Return or otherwise with respect to Taxes that is inconsistent with the treatment described in this Section 21(n) , except as otherwise required by a change in applicable law or by a final “determination” within the meaning of Section 1313(a) of the Code (or any similar provision of applicable state or local law). The Company and each Reinvestment Stockholder agree and acknowledge that all payments of the Per Share Price to the Reinvestment Stockholders pursuant to Section 2.7(b)(ii) of the Merger Agreement in respect of Owned Shares other than the Rollover Shares shall be paid from the Equity Financing proceeds portion of the Exchange Fund and are intended to be treated as a sale of such Owned Shares by the Reinvestment Stockholders to the Equity Investors for U.S. federal and applicable state and local income tax purposes.
(o) Special Committee Approval . Notwithstanding anything to the contrary herein, prior to the Effective Time, no amendment or waiver of any provision of this Agreement shall be made by or on behalf of the Company under or with respect to this Agreement without first obtaining the approval of the Special Committee.
[ Remainder of Page Intentionally Blank ]
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the date set forth above.
West Street Strategic Solutions Fund I, L.P.
By: Goldman Sachs Asset Management, L.P., Attorney-in-Fact
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Managing Director
Address: 200 West Street, 15th Floor
New York, NY 10282, USA
[ Signature Page to Rollover and Support Agreement ]
Broad Street Principal Investments, L.L.C.
Signature:
/s/ Dennis van Laer
Name:
Dennis van Laer
Title:
Vice President
Address: 200 West Street, 15th Floor
New York, NY 10282, USA
[ Signature Page to Rollover and Support Agreement ]
West Street Strategic Solutions Fund I-(C), L.P.
By: Goldman Sachs Asset Management, L.P., Attorney-in-Fact
Signature:
/s/ Dennis van Laer
Name:
Dennis van Laer
Title:
Managing Director
Address: 200 West Street, 15th Floor
New York, NY 10282, USA
[ Signature Page to Rollover and Support Agreement ]
WSSS Investments W, LLC
By: Goldman Sachs Asset Management, L.P., as Investment Manager
Signature:
/s/ Dennis van Laer
Name:
Dennis van Laer
Title:
Managing Director
Address: 200 West Street, 15th Floor
New York, NY 10282, USA
[ Signature Page to Rollover and Support Agreement ]
WSSS Investments X, LLC
Signature:
/s/ Dennis van Laer
Name:
Dennis van Laer
Title:
Vice President
Address: 200 West Street, 15th Floor
New York, NY 10282, USA
[ Signature Page to Rollover and Support Agreement ]
WSSS Investments I, LLC
Signature:
/s/ Dennis van Laer
Name:
Dennis van Laer
Title:
Vice President
Address: 200 West Street, 15th Floor
New York, NY 10282, USA
[ Signature Page to Rollover and Support Agreement ]
WSSS Investments U, LLC
Signature:
/s/ Dennis van Laer
Name:
Dennis van Laer
Title:
Vice President
Address: 200 West Street, 15th Floor
New York, NY 10282, USA
[ Signature Page to Rollover and Support Agreement ]
West Street Ct Private Credit Partnership, L.P.
By: Goldman Sachs Asset Management, L.P., its Investment Manager
Signature:
/s/ Dennis van Laer
Name:
Dennis van Laer
Title:
Managing Director
Address: 200 West Street, 15th Floor
New York, NY 10282, USA
[ Signature Page to Rollover and Support Agreement ]
SOHO HOUSE & CO INC.
By:
/s/ Andrew Carnie
Name: Andrew Carnie
Title: Chief Executive Officer
[ Signature Page to Rollover and Support Agreement ]
Schedule 1
Owned Shares
Rollover Shares
Name of Reinvestment Stockholder
Number of
Class A
Owned
Shares
Number of
Class B
Owned
Shares
Number
of Owned
SAR
Awards
Number
of Owned
RSU
Awards
Number
of Class A
Rollover
Shares
Number
of Class B
Rollover
Shares
Number
of
Rollover
SAR A
wards
Number
of
Rollover
RSU
Awards
Broad Street Principal Investments, L.L.C.
West Street Strategic Solutions Fund I, L.P.
West Street Strategic Solutions Fund I-(C), L.P.
WSSS Investments W, LLC
WSSS Investments X, LLC
WSSS Investments I, LLC
WSSS Investments U, LLC
West Street CT Private Credit Partnership, L.P.
Exhibit 6
August 15, 2025
Broad Street Principal Investments, L.L.C.;
West Street Strategic Solutions Fund I, L.P.;
West Street Strategic Solutions Fund I-(C), L.P.;
WSSS Investments W, LLC;
WSSS Investments X, LLC;
WSSS Investments I, LLC;
WSSS Investments U, LLC; and
West Street Ct Private Credit Partnership, L.P. (collectively, the “ GS Funds ”)
200 West Street, 15th Floor
New York, NY 10282, USA
Re: GS Funds – Rollover Side Letter (this “ Side Letter ”)
Reference is made to (i) the Agreement and Plan of Merger dated as of the date hereof (as may be amended from time to time, the “ Merger Agreement ”), among EH Parent LLC, a Delaware limited liability company (“ Parent ”), EH MergerSub Inc., a Delaware corporation and wholly owned subsidiary of Parent (“ Merger Sub ”) and Soho House & Co Inc., a Delaware corporation (the “ Company ”), (ii) the Rollover and Support Agreement dated as of the date hereof (as may be amended from time to time, the “ Rollover Agreement ”), among the undersigned and the Company. All capitalized terms used but not otherwise defined herein shall have the respective meanings assigned thereto in the Merger Agreement. Pursuant to the Merger Agreement, at the Closing of the Merger each outstanding share of Company Common Stock (other than shares designated as Rollover Shares) will be cancelled and converted into the right to receive $9.00 per share in cash (the “ Per Share Cash Consideration ”). Pursuant to the Rollover Agreement, 13,973,957 shares of Class A Common Stock of the Company have been designated as Rollover Shares.
The undersigned and the Company, each intending to be legally bound, hereby agree that:
The undersigned and the Company will enter into, at the Closing, the regulatory letter agreement in substantially the form set forth on Annex A attached hereto (the “ Regulatory Letter Agreement ”).
The Company agrees that it shall use its reasonable best efforts to obtain additional equity funding after the date hereof and at or prior to the Closing of the Merger (the “ Incremental Equity Funding ”). For clarity, any proceeds received by the Company under the Equity Financing or Subscription Agreements shall not be treated as Incremental Equity Funding. The Company shall keep the GS Funds reasonably informed on a current basis of the status of the Incremental Equity Funding (including material developments, timing, and key terms under consideration). For the avoidance of doubt, the Incremental Equity Funding will be raised at the Company level and not at the Parent level.
If the Company is able to obtain the Incremental Equity Funding at or prior to the Closing of the Merger then with respect to the first $111,791,657 of net proceeds of the Incremental Equity Funding actually received by the Company at or prior to the Closing, a number of the GS Funds' shares of Class A Common Stock that have been designated as Rollover Shares equal to the product (rounded down to the nearest whole number) of (x) 50% of such net proceeds divided by (y) the Per Share Cash Consideration shall not be treated as Rollover Shares and shall instead be cancelled at the Closing and converted into the right to receive the Per Share Cash Consideration as provided in the Merger Agreement; provided that in no event shall the aggregate amount of the GS Funds' Class A Common Stock to be cancelled and converted into the Per Share Cash Consideration exceed 7,763,310 shares.
The GS Funds may appoint one non-voting board observer to the board of directors of the Surviving Corporation, for so long as the GS Funds own in the aggregate at least fifty percent (50%) of the shares of Class A Common Stock owned by the GS Funds as of immediately after the Closing of the Merger (the “ Board Observer ”). The Board Observe will be entitled to receive the board materials distributed to the board of directors of the Surviving Corporation (including notices) and shall be entitled to attend all meetings of the board of directors of the Surviving Corporation, subject, in each case, to appropriate restrictions to protect confidentiality, legal privilege, and conflicts of interest.
The Company shall, at and subject to the occurrence of the Closing, reimburse the GS Funds for all reasonable out-of-pocket costs and expenses (including legal counsel) and any VAT incurred in connection with the preparation, negotiation, execution, and delivery of the Rollover Agreement, the Voting Agreement Side Letter, the Voting Agreement and any other documents related thereto and the consummation of the transactions contemplated thereby, up to a maximum amount of $500,000.
In addition, the undersigned acknowledge and agree that effective as of, and conditioned upon, the occurrence of the Closing, the call rights to purchase the Class A Common Stock from the GS Funds pursuant to Section 6.6(b)(ii) of that certain Second Supplemental Shareholders' Agreement, dated as of March 23, 2021, by and between the Company and certain stockholders of the Company, shall be terminated and shall be of no further force and effect.
In the event of any conflict between the terms of this Side Letter and the Rollover Agreement, the Voting Agreement Side Letter, the Voting Agreement or the Letter Agreement, the terms of this Side Letter shall govern. The provisions set forth in Sections 17 ( Notices Assignment ) and 21 ( Miscellaneous ) of the Rollover Agreement are hereby incorporated into this Side Letter as if set forth herein in their entirety, mutatis mutandis
[ Signature page follows ]
Please confirm that the above correctly reflects our understanding and agreement with respect to the foregoing matters by signing the enclosed copy of this Side Letter and returning it to us, whereupon this Side Letter shall become a legally binding agreement between the undersigned.
Very truly yours,
SOHO HOUSE & CO INC.
By:
/s/ Andrew Carnie
Name:
Andrew Carnie
Title:
Chief Executive Officer
Address:
180 Strand, London, United Kingdom WC2R 1EA
[ Signature Page to GS Funds Side Letter ]
Acknowledged and agreed as of the date first set forth above:
West Street Strategic Solutions Fund I, L.P.
By: Goldman Sachs Asset Management, L.P., Attorney-in-Fact
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Managing Director
[ Signature Page to GS Funds Side Letter ]
Broad Street Principal Investments, L.L.C.
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Vice President
[ Signature Page to GS Funds Side Letter ]
West Street Strategic Solutions Fund I-(C), L.P.
By: Goldman Sachs Asset Management, L.P., Attorney-in-Fact
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Managing Director
[ Signature Page to GS Funds Side Letter ]
WSSS Investments W, LLC
By: Goldman Sachs Asset Management, L.P., as Investment Manager
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Managing Director
[ Signature Page to GS Funds Side Letter ]
WSSS Investments X, LLC
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Vice President
[ Signature Page to GS Funds Side Letter ]
WSSS Investments I, LLC
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Vice President
[ Signature Page to GS Funds Side Letter ]
WSSS Investments U, LLC
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Vice President
[ Signature Page to GS Funds Side Letter ]
West Street Ct Private Credit Partnership, L.P.
By: Goldman Sachs Asset Management, L.P., its Investment Manager
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Managing Director
[ Signature Page to GS Funds Side Letter ]
Exhibit 7
Execution Version
August 15, 2025
Broad Street Principal Investments, L.L.C.;
West Street Strategic Solutions Fund I, L.P.;
West Street Strategic Solutions Fund I-(C), L.P.;
WSSS Investments W, LLC;
WSSS Investments X, LLC;
WSSS Investments I, LLC;
WSSS Investments U, LLC; and
West Street Ct Private Credit Partnership, L.P.
200 West Street, 15th Floor
New York, NY 10282, USA
Re: Voting Agreement Side Letter
Reference is made to the Agreement and Plan of Merger dated as of the date hereof (as may be amended from time to time, the “ Merger Agreement ”), among EH Parent LLC, a Delaware limited liability company (“ Parent ”), EH MergerSub Inc., a Delaware corporation and wholly owned subsidiary of Parent (“ Merger Sub ”) and Soho House & Co Inc., a Delaware corporation (the “ Company ”). All capitalized terms used but not otherwise defined herein shall have the respective meanings assigned thereto in the Merger Agreement.
The undersigned, intending to be legally bound, hereby agrees to enter into the Voting Agreement set forth on Annex A hereto at the Closing under the Merger Agreement.
Subject to applicable law and subject to the other provisions of this Agreement, this Agreement may be amended or modified by the parties at any time by execution of an instrument in writing signed on behalf of the Company and the undersigned.
This Agreement, together with the Merger Agreement (and the documents and instruments and other agreements among the parties as contemplated by or referred to therein) constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all other prior agreements, understandings, representations and warranties, both written and oral, between the undersigned and the Company.
The undersigned shall promptly execute and deliver such documents, certificates, agreements, instruments and other writings and take such other actions as may be reasonably requested by the Company in order to consummate, implement, affirm or ratify the obligations contemplated by this Agreement.
This Agreement shall be governed by and interpreted, construed and enforced in accordance with the laws of the State of Delaware. Any and all claims, suits, proceedings, controversies, and causes of action arising out of or relating to this Agreement (each, an “ Action ”), whether sounding in contract, tort, or statute, shall be governed by the internal laws of the State of Delaware, including its statutes of limitations, without giving effect to any conflict-of-laws or other rules (whether of the State of Delaware or any other jurisdiction) that would result in the application of the laws or statutes of limitations of a different jurisdiction other than the State of Delaware. Section 9.10(a) of the Merger Agreement is incorporated herein by reference and shall apply hereto mutatis mutandis
This Agreement may be executed in one or more counterparts (including by facsimile or electronic mail in .pdf, .tif, .gif, .jpg or similar attachment) and by different parties in separate counterparts, with the same effect as if all parties hereto had signed the same document. All counterparts so executed and delivered shall be construed together and shall constitute one and the same agreement.
[ Signature page follows ]
Please confirm that the above correctly reflects our understanding and agreement with respect to the foregoing matters by signing the enclosed copy of this letter agreement and returning it to us, whereupon this letter agreement shall become a legally binding agreement between the undersigned.
Very truly yours,
SOHO HOUSE & CO INC.
By:
/s/ Andrew Carnie
Name:
Andrew Carnie
Title:
Chief Executive Officer
Address: 180 Strand, London, United Kingdom, WC2R 1EA
[ Signature Page to Voting Agreement Side Letter ]
Acknowledged and agreed as of the date first set forth above:
West Street Strategic Solutions Fund I, L.P.
By: Goldman Sachs Asset Management, L.P., Attorney-in-Fact
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Managing Director
[ Signature Page to Voting Agreement Side Letter ]
Broad Street Principal Investments, L.L.C.
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Vice President
[ Signature Page to Voting Agreement Side Letter ]
West Street Strategic Solutions Fund I-(C), L.P.
By: Goldman Sachs Asset Management, L.P., Attorney-in-Fact
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Managing Director
[ Signature Page to Voting Agreement Side Letter ]
WSSS Investments W, LLC
By: Goldman Sachs Asset Management, L.P., as Investment Manager
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Managing Director
[ Signature Page to Voting Agreement Side Letter ]
WSSS Investments X, LLC
Signature :
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Vice President
[ Signature Page to Voting Agreement Side Letter ]
WSSS Investments I, LLC
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Vice President
[ Signature Page to Voting Agreement Side Letter ]
WSSS Investments U, LLC
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Vice President
[ Signature Page to Voting Agreement Side Letter ]
West Street Ct Private Credit Partnership, L.P.
By: Goldman Sachs Asset Management, L.P., its Investment Manager
Signature:
/s/ Dennis van Laer
Name: Dennis van Laer
Title: Managing Director
[ Signature Page to Voting Agreement Side Letter ]
Annex A – Voting Agreement
See attached
PRIVILEGED & CONFIDENTIAL
VOTING AGREEMENT
dated as of
[●], 2025
of
[●]
THE INTERESTS EVIDENCED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER THE SECURITIES LAWS OF ANY STATE OR FOREIGN JURISDICTION AND MAY NOT BE SOLD OR TRANSFERRED WITHOUT COMPLIANCE WITH APPLICABLE FEDERAL, STATE OR NON-U.S. SECURITIES LAWS. IN ADDITION, TRANSFER OR OTHER DISPOSITION OF THE INTERESTS IS RESTRICTED AS PROVIDED IN THIS AGREEMENT.
THIS DOCUMENT IS INTENDED SOLELY TO FACILITATE DISCUSSIONS AMONG THE PARTIES IDENTIFIED HEREIN. IT IS NOT INTENDED TO CREATE, AND IT WILL NOT BE DEEMED TO CREATE, A LEGALLY BINDING OR ENFORCEABLE OFFER OR AGREEMENT OF ANY TYPE OR NATURE PRIOR TO THE ACTUAL EXECUTION AND DELIVERY OF THIS DOCUMENT BY ALL SUCH PARTIES.
TABLE OF CONTENTS
Page
ARTICLE 1
Definitions; Interpretive Principles
Section 1.01
Definitions
Section 1.02
General Interpretive Principles
ARTICLE 2
Implementation
Section 2.01
Certificate of Incorporation
Section 2.02
Exercise of Shareholder Rights
ARTICLE 3
Capital Structure and Organization
Section 3.01
Capital Structure
Section 3.02
Initial Shareholdings
Section 3.03
Additional Capital Contributions
Section 3.04
Conversions and Transfers of Class B Common Stock
ARTICLE 4
Certain Rights and Obligations of Shareholders
Section 4.01
Withholding
Section 4.02
Voting
Section 4.03
Preemptive Rights
ARTICLE 5
Board and Officers
Section 5.01
Board Composition
Section 5.02
Resignations, Removals and Vacancies
Section 5.03
Replacement of the MCR Directors
Section 5.04
Replacement of the Yucaipa Directors
Section 5.05
Appointment of Independent Directors
Section 5.06
Replacement of the Designated Director
Section 5.07
Replacement of the RC Director
Section 5.08
Changes in Classification of Directors
Section 5.09
Decision-making of the Board
Section 5.10
Notice
Section 5.11
Quorum
Section 5.12
Board Observers
Section 5.13
Action Without a Meeting
Section 5.14
Committees of the Board
Section 5.15
Board Powers
Section 5.16
Yucaipa Consent Matters
Section 5.17
Other Shareholder Consent Matters
Section 5.18
Independent Director Consent
Section 5.19
Officers; Designation and Election of Officers; Duties
i
Section 5.20
Removal of Officers; Vacancies
Section 5.21
Vice Chair
Section 5.22
Reliance by Third Parties
ARTICLE 6
Indemnification and Exculpation
Section 6.01
Indemnity
Section 6.02
Exculpation
Section 6.03
Waiver of Corporate Opportunity
Section 6.04
D&O Insurance
Section 6.05
Entry Into Force
Section 6.06
Transaction Documents
ARTICLE 7
Accounting, Tax, Fiscal and Legal Matters
Section 7.01
Fiscal Year
Section 7.02
Books of Account and Other Information
Section 7.03
Auditors
Section 7.04
Certain Tax Matters
ARTICLE 8
Dividends and Distributions
Section 8.01
Dividends
Section 8.02
Dividends and Distributions in Cash, Stock or in Kind
Section 8.03
Limitations on Dividends and Distributions
ARTICLE 9
Transfer Restrictions and Additional Shareholders
Section 9.01
Restrictions on Transfers
Section 9.02
Permitted Transfers
Section 9.03
Additional Shareholders
Section 9.04
Right of First Offer
Section 9.05
Termination of Shareholder Status
Section 9.06
Void Transfers
Section 9.07
[Reserved]
Section 9.08
Tag-Along Right
Section 9.09
Drag-Along Right
Section 9.10
Additional Conditions to Tag-Along Sales and Drag-Along Sales
Section 9.11
Public Offering Rights
Section 9.12
Registration Rights
ARTICLE
Covenants
Section 10.01
Approved Budget
Section 10.02
Confidentiality
Section 10.03
Non-Disparagement
ii
ARTICLE
Reporting
Section 11.01
Financial Information
Section 11.02
Liability
ARTICLE 12
Miscellaneous
Section 12.01
[Reserved]
Section 12.02
[Reserved]
Section 12.03
Further Assurances
Section 12.04
Expenses
Section 12.05
Amendment or Modification
Section 12.06
Waiver; Cumulative Remedies
Section 12.07
Entire Agreement
Section 12.08
Third Party Beneficiaries
Section 12.09
Non-Assignability; Binding Effect
Section 12.10
Severability
Section 12.11
Injunctive Relief
Section 12.12
Governing Law
Section 12.13
Dispute Resolution.
Section 12.14
JURISDICTION AND VENUE; WAIVER OF JURY TRIAL
Section 12.15
Notices
Section 12.16
Counterparts
EXHIBITS
EXHIBIT A
Shareholder Information
EXHIBIT B-1
Initial Directors
EXHIBIT B-2
Initial Non-Voting Representative
EXHIBIT C
Pre-Approved Affiliate Transactions
iii
VOTING AGREEMENT
This VOTING AGREEMENT in respect of [●], a Delaware corporation (the “ Company ”), is made as of [●] (the “ Effective Date ”), by and among the shareholders of the Company listed on Exhibit A attached hereto, as such schedule may be updated from time to time in accordance with the terms of this Agreement (collectively the “ Shareholders ”, and each, a “ Shareholder ”) (the Company and each of the Shareholders individually a “ Party ” and together the “ Parties ”).
RECITALS
WHEREAS, pursuant to that certain Agreement and Plan of Merger, dated as of August 15, 2025 (as amended from time to time, the “ Merger Agreement ”) by and among EH Parent LLC, a Delaware limited liability company ( “ Parent ”), EH MergerSub Inc., a Delaware corporation ( “ Merger Sub ”), and wholly owned subsidiary of Parent, and the Company, Merger Sub merged with and into the Company, with the Company surviving such merger as the surviving company upon the terms and subject to the conditions set forth therein (the “ Merger ”);
WHEREAS, immediately prior to the signing of this Agreement and after giving effect to the transactions contemplated by the Merger Agreement, and as of the Effective Date, each of the Shareholders owns the number and class of shares set forth opposite such Shareholder's name on Exhibit A hereto as of the date hereof; and
WHEREAS, the Parties wish to enter into this Agreement to set forth their respective rights and obligations in respect of their investment in the Company and the governance of the Company and its Subsidiaries.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged and agreed, the Parties hereto hereby agree as follows:
ARTICLE 1
Definitions; Interpretive Principles
Section 1.01 Definitions . In this Agreement, except where the context otherwise requires:
“ Affiliate ” means, with respect to any Person, any other Person, directly or indirectly, controls, is controlled by, or is under common control with such other Person; provided , that, an Affiliate of any Person shall also include (a) in the case of a partnership, any general partner of such partnership, (b) in the case of a trust, any trustee or beneficiary of such trust, (c) any spouse, parent, child or lineal descendant of any individual described in clause (b) above, (d) in the case of an individual, any spouse, parent, child or lineal descendant of such individual, and (e) any trust, partnership or limited liability company, under which the distributions may be made only to or for the benefit of such Person and/or any spouse, parent, child or lineal descendant of such Person. For purposes of this Agreement, no Shareholder shall be deemed to be an “ Affiliate” of any member of the Company Group or any other Shareholder.
“ Affiliate Transaction ” means any transaction with any Shareholder or an Affiliate of any Shareholder, except that none of the following shall be deemed or treated as an Affiliate Transaction: (a) administrative amendments to any such agreement, understanding or transaction that was in effect as of the date hereof, (b) indemnification, advancement of expenses and/or exculpation of liability made pursuant to this Agreement or any governing agreement or other organizational document of the Company or Subsidiary of the Company, (c) reimbursement of reasonable expenses incurred in connection with the business of the Company and the Company Subsidiaries by officers, Directors and employees in their respective capacities as such, (d) the employment arrangements with officers, directors or other persons performing services for the Company or any Company Subsidiary reflecting arm's-length terms for such services and approved by the Board, (e) any transactions entered into on terms that are no less favorable in the aggregate to the Company (or the relevant Subsidiary thereof party thereto) than reasonably would be obtainable from an unaffiliated third party (it being agreed that any pricing or other terms required by Applicable Law shall be deemed to constitute an arm's-length term for purposes of this clause
(e) ), (f) any transactions made in the ordinary course of business between the Company or its Subsidiaries, on the one hand, and portfolio companies of any Shareholder or its Affiliates, on the other hand, in each case upon arm's-length terms, (g) any transaction in which a Shareholder or any of its Affiliates receives goods or services from the Company or any of its Subsidiaries in the ordinary course of business, (h) any transaction in which the amount involved does not exceed $120,000, (i) any transaction that involves the provision of any accommodation services (including any architectural design, food or beverage) that are provided on substantially the same terms as those prevailing at the time for comparable services provided to non-Affiliates, (j) any transaction that involves any lease, hotel management agreement or purchase arrangements in connection with the development projects that as of the Effective Date have been approved in accordance with the Company's Related-Person Transactions Policy in place as of the Effective Date, including any renewals, extensions or modifications of such leases, agreements or purchase arrangements that are not materially different in scope and terms as those in place for such developments as at the Effective Date, (k) any transactions contemplated by, or with respect to which rights are expressly provided under, this Agreement (including issuances of equity), (l) any transaction authorized or approved by the Board in compliance with Section 5.18 , and (m) for the avoidance of doubt, any agreement, understanding or transaction between or among majority-owned Subsidiaries.
“ Agreement ” means this Voting Agreement, as the same may be amended from time to time in accordance with the terms hereof.
“ Applicable Law ” means, with respect to any Person, any transnational, domestic or foreign federal, state, provincial or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise.
“ Apollo Investor ” means [Apollo Capital Management, L.P.]
“ Apollo Observer ” has the meaning ascribed to it in Section 5.12
“ Approved Budget ” has the meaning ascribed to it in Section 10.01
“ Board ” means the board of directors of the Company.
“ Bruce Group ” means Classact, LLC.
“ Budget ” has the meaning ascribed to it in Section 10.01
“ Business Day ” means any day other than Saturday, Sunday or a day on which banking institutions in New York, New York or London, England are authorized or obligated by law or executive order to close.
“ Bylaws ” means the Bylaws of the Company, as may be amended, supplemented or restated from time to time.
“ Caring ” means Richard Caring.
“ Certificate of Incorporation ” means the Certificate of Incorporation of the Company, as may be amended, supplemented or restated from time to time.
“ Chairman ” has the meaning ascribed to it in Section 5.19
“ Change of Control ” means (a) any merger, consolidation, recapitalization or reorganization of the Company with any other Person (other than a Shareholder or one of its Affiliates) that results in the Shareholders as of immediately prior to the consummation of such transaction ceasing to own, directly or indirectly, of at least a majority of the voting power of the issued and outstanding Shares of the Company (or its successor) as of immediately following the consummation of such transaction, (b) a sale, lease, transfer, exclusive license or other disposition of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, to any Person or group of Persons (other than a Shareholder or one of its Affiliates) or (c) any other transaction or series of related transactions which results in any Person or group of Persons (other than a Shareholder or one of its Affiliates) obtaining ownership of more than fifty percent (50%) of the voting power of the Company.
“ Class A Common Stock ” has the meaning ascribed to it in Section 3.01
“ Class B Common Stock ” has the meaning ascribed to it in Section 3.01
“ Code ” means the United States Internal Revenue Code of 1986.
“ Company ” has the meaning ascribed to it in the Preamble.
To be updated to reflect final Apollo investing entity.
“ Company Auditors ” means the independent statutory auditors of the Company, as may be engaged by the Company from time to time.
“ Company Group ” means the Company, each Subsidiary of the Company and each other Person that is controlled, directly or indirectly, by the Company.
“ Company Securities ” means any Securities of the Company.
“ Confidential Information ” means any information concerning the Company or any Persons that are or become its Subsidiaries or the financial condition, business, operations or prospects of the Company or any such Subsidiaries in the possession of or furnished to any Shareholder (including by virtue of its present or former right to designate a Director); provided , that the term “ Confidential Information” does not include information that (a) is or becomes generally available to the public other than as a result of a disclosure by a Shareholder or its directors, officers, employees, stockholders, members, partners, agents, counsel, investment advisers or other representatives (all such persons being collectively referred to as “ Representatives ”) in violation of this Agreement, any other agreement, any fiduciary duty or any Applicable Law, (b) was available to such Shareholder on a non-confidential basis prior to its disclosure to such Shareholder by the Company, or (c) is independently developed by such Shareholder without reference to, or use of, any Confidential Information and without violating any confidentiality agreement with, or other obligation of secrecy to, the Company.
“ Consolidated Adjusted EBITDA ” means, for any Measurement Period, the net income (or loss) of the Company and its Subsidiaries plus (i) depreciation and amortization, (ii) interest expense, (iii) income tax expense, (iv) gain (or loss) on sale of property and other, (v) share of income (or loss) from equity method investments adjusted EBITDA, (vi) foreign exchange, (vii) share of equity method investments, (viii) adjusted share-based compensation expense, (ix) operational reorganization, settlement and severance expense, (x) out of period operating lease liability adjustment, (xi) brand license inventory provision, and (xii) impairment relating to long-lived and intangible assets and goodwill (as calculated in a manner consistent with the Company's past practice and for purposes of its earnings releases, in each case, prior to the date of this Agreement).
“ Consolidated Adjusted EBITDA Threshold ” shall mean the Consolidated Adjusted EBITDA of the Company being equal to or greater than $325,000,000 in any Measurement Period ended on, or prior to, the Trigger Date (provided, however, for purposes of Section 9.09(a) (i)(y) , the Measurement Period may end on, prior to, or following the Trigger Date).
“ control ” means the power to direct the management and policies of a Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “ controlling ” and “ controlled ” have correlative meanings.
“ Corporate Opportunity ” has the meaning ascribed to it in Section 6.03
“ Delaware Court ” has the meaning ascribed to it in Section 12.14(a)
“ Designated Director ” has the meaning ascribed to it in Section 5.01(a)(c)
“ Director ” has the meaning ascribed to it in Section 5.01(a)
“ Director Transfer Date ” has the meaning ascribed to it in Section 5.01(c)
“ Dispute ” has the meaning ascribed to it in Section 12.13(a)
“ Drag-Along Right ” has the meaning ascribed to it in Section 9.09(a)
“ DA ROFO Election Period ” has the meaning ascribed to it in Section 9.04(c)
“ DA ROFO Offer ” has the meaning ascribed to it in Section 9.04(c)
“ DA ROFO Offering Shareholder ” has the meaning ascribed to it in Section 9.04(c)
“ DA ROFO Offer Price ” has the meaning ascribed to it in Section 9.04(c)
“ DA ROFO Sale Notice ” has the meaning ascribed to it in Section 9.04(c)
“ DA ROFO Shares ” has the meaning ascribed to it in Section 9.04(c)
“ Drag-Along Sale ” has the meaning ascribed to it in Section 9.09(a)
“ Drag-Along Sale Notice ” has the meaning ascribed to it in Section 9.09(b)
“ Drag-Along Seller ” has the meaning ascribed to it in Section 9.09(a)
“ Effective Date ” has the meaning ascribed to it in the Preamble.
“ Encumbrance ” means any charge, claim, community or other marital property interest, right of first option, right of first offer or refusal, mortgage, pledge, lien, retention of title, usufruct, attachment, easement or other encumbrance or any agreement to create any of the foregoing.
“ Encumber ” shall have a correlative meaning.
“ Equity Securities ” means, with respect to any Person, (a) any capital stock, partnership interests, limited liability company interests, units or any other type of equity interest, or other indicia of equity ownership (including profits interests), including, in the case of the Company, Shares (collectively, “ Interests ”), (b) any security convertible into or exercisable or exchangeable for, with or without consideration, any Interests (including any option to purchase such convertible security) or (c) any security carrying any warrant or right to subscribe to or purchase any security described in clause
(a) or (b)
“ Estate Planning Vehicle ” of any Person, means any vehicle formed primarily for the benefit of such Person or any of such Person's Family Members (including any trust, foundation or other entity established for estate, wealth, family or charitable purposes by or on behalf of such Person and/or one or more of such Person's Family Members).
“ Exchange Act ” means the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder.
“ Family Members ” of any natural Person shall mean the (i) spouses, and/or civil partners of such Person; provided , that, any Person who becomes divorced or whose civil partnership is dissolved shall, on the grant of the decree absolute or final dissolution order in respect of that divorce or dissolution, cease to be a Family Member of their former spouse or civil partner, (ii) parents or siblings of such Person, (iii) child, adopted child or stepchild (including a child of the civil partner) of such Person, or any descendant of such child, adopted child or step child, or (iv) an entity in relation to which an individual or their Family Member controls more than one-half of the voting power thereof.
“ First Extension ” means the extension of the term of this Agreement until the Second Extension Determination Date, in the event the Consolidated Adjusted EBITDA Threshold has been met, unless Yucaipa and the MCR Investor agree otherwise (and for which the consent of the Company or any other Shareholder is not required).
“ Fiscal Year ” has the meaning ascribed to it in Section 7.01
“ Force Majeure Event ” means the occurrence of strikes, riots, wars, acts of terrorism, natural disasters, pandemics, epidemics, acts of God or other similar events beyond the control of the Company (each, a “ Force Majeure Event ”).
“ GAAP ” means generally accepted accounting principles in the United States.
“ Governmental Approval ” means any authorization, consent, waiver, order and approval of any Governmental Authority, including any applicable waiting periods associated therewith.
“ Governmental Authority ” means any transnational, domestic or foreign federal, state, provincial, territorial or local governmental, regulatory or administrative authority, department, court, agency or official, including any political subdivision thereof or arbitral tribunal (public or private).
“
Hearing ” has the meaning ascribed to it in Section 12.13(g)
“ Indemnification Sources ” has the meaning ascribed to it in Section 6.01(c)
“ Indemnified Liabilities ” has the meaning ascribed to it in Section 6.01(a)
“ Indemnitee-Related Entity ” means any exempted company, corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than the Company, its Subsidiaries or the insurer under and pursuant to an insurance policy of the Company or any of its Subsidiaries) from whom an Indemnitee may be entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the Company or any of its Subsidiaries may also have an indemnification or advancement obligation.
“ Indemnitees ” has the meaning ascribed to it in Section 6.01(a)
“ Initial Chairman ” shall mean Ronald Burkle.
“ Initial Class B Common Stock Holder ” shall mean the Persons who hold Class B Common Stock of the Company as of the Effective Date.
“ Interests ” has the meaning ascribed to such term in the definition of “ Equity Securities.”
“ IPO ” means the first public offering, following the Effective Date, of common Company Securities, or of Equity Securities of another entity that, directly or indirectly, controls the Company or of any legal entity in which the Company is converted in order to effect the first public offering, that results in such common Company Securities, or the Equity Securities of such entity, being listed (and, if applicable, registered under the Exchange Act or European equivalent, if applicable) and publicly traded on a securities exchange or automated quotation system.
“ Issuance Notice ” has the meaning ascribed to it in Section 4.03(a)
“ JAMS ” has the meaning ascribed to it in Section 12.13(b)
“ Joinder ” has the meaning ascribed to it in Section 9.03(a)
“ Jointly Indemnifiable Claim ” shall be broadly construed and shall include, without limitation, any Indemnified Liabilities for which the Indemnitee shall be entitled to indemnification from both (a) the Company and/or any of its Subsidiaries pursuant to the Indemnification Sources, on the one hand, and (b) any Indemnitee-Related Entity pursuant to any other agreement between such Indemnitee-Related Entity and the Indemnitee pursuant to which the Indemnitee is indemnified, the laws of the jurisdiction of incorporation or organization of such Indemnitee-Related Entity and/or the organizational documents of such Indemnitee-Related Entity, on the other hand.
“ MCR Directors ” has the meaning ascribed to it in Section 5.01(a)(b)
“ MCR Investor ” means MCR Hospitality Fund IV LP and MCR Hospitality Fund IV QP LP.
“ MCR Investor Tag-Along Sale ” has the meaning ascribed to it in Section 9.08(a)
“ MCR Investor Tag-Along Seller ” has the meaning ascribed to it in Section 9.08(a)
“ MCR Parent ” means either (i) Tyler Morse or (ii) MCR Hospitality Fund IV GP LLC.
“ Measurement Period ” means any period of four (4) consecutive fiscal quarters of the Company that commences after the Effective Date.
“ Merger ” has the meaning ascribed to it in the Recitals.
“ Merger Agreement ” has the meaning ascribed to it in the Recitals.
“ Merger Sub ” has the meaning ascribed to it in the Recitals.
“
Minority Offering Shareholder ” has the meaning ascribed to it in Section 9.04(a)(a)
“
Minority ROFO Election Period ” has the meaning ascribed to it in Section 9.04(a)(b)
“ Minority ROFO Holder ” has the meaning ascribed to it in Section 9.04(a)(b)
“ Minority ROFO Offer ” has the meaning ascribed to it in Section 9.04(a)(b)
“ Minority ROFO Offer Price ” has the meaning ascribed to it in Section 9.04(a)(b)
“ Minority ROFO Sale Notice ” has the meaning ascribed to it in Section 9.04(a)(a)
“ Minority ROFO Shares ” has the meaning ascribed to it in Section 9.04(a)(a)
“ MOIC ” means, as determined by the Board in good faith, as of any date of determination, the total multiple which is earned on the aggregate amount invested by the MCR Investor and its Permitted Transferees in the Company and its Affiliates, which is calculated as the ratio of (a) the sum of (i) the aggregate cash consideration and the market value of any freely marketable securities, in each case, to be received by the MCR Investor and its Permitted Transferees in connection with a proposed Drag-Along Sale, (ii) the aggregate cash consideration and the market value (at the time of the applicable Transfer) of any freely marketable securities, in each case received by the MCR Investor and its Permitted Transferees in connection with any Transfers of Company Securities prior to the closing of the Drag-Along Sale (excluding, for the avoidance of doubt, any such amounts received in a Transfer to a Permitted Transferee), (iii) the aggregate amount of dividends and distributions received by the MCR Investor and its Permitted Transferees in respect of Company Securities from and after the Effective Date and prior to the closing of the Drag-Along Sale, to (b) the aggregate amount of cash paid by the MCR Investor and its Permitted Transferees to purchase Company Securities (excluding, for the avoidance of doubt, any such amounts paid in a Transfer from a Permitted Transferee) prior to the date of notice of the applicable Drag-Along Sale. For the avoidance of doubt and notwithstanding anything to the contrary herein, no fees or other amounts payable directly or indirectly to the MCR Investor or an Affiliate of the MCR Investor pursuant to any contractor, consultant, employment or other similar agreement shall be included for purposes of calculating MOIC.
“ Non-Drag-Along Seller ” has the meaning ascribed to it in Section 9.09(a)
“ Non-Voting Representatives ” has the meaning ascribed to it in Section 5.01(b)
“ Offering Shareholder ” means the Minority Offering Shareholder, the Yucaipa Offering Shareholder, the DA ROFO Offering Shareholder and/or the Other ROFO Offering Shareholder, as applicable.
“ Officer ” and “ Officers ” have the meanings ascribed to them in Section 5.19
“ Other ROFO Offering Shareholder ” has the meaning ascribed to it in Section 9.04(b)(b)
“ Other ROFO Shares ” has the meaning ascribed to it in Section 9.04(b)(b)
“ Ownership Change ” has the meaning ascribed to it in Section 7.04(e)
“ Parent ” has the meaning ascribed to it in the Recitals.
“ Party ” and “ Parties ” have the meanings ascribed to them in the Preamble.
“ Permitted Apollo Observers ” shall mean each of [●] and [●].
“ Permitted MCR Investor Designees ” shall mean each of Tyler Morse and Joseph Delli Santi.
“ Permitted Transferee ” means, (a) in the case of any Shareholder that is not an individual or an Estate Planning Vehicle of an individual, any Person that is an Affiliate of such Shareholder, and (b) in the case of any Shareholder that is an individual or an Estate Planning Vehicle of an individual who would otherwise be a Shareholder if one or more of such individual's Estate Planning Vehicles were not a Shareholder, any Estate Planning Vehicle of such individual and any beneficiaries thereof by will or intestacy.
“ Permitted Yucaipa Designee ” shall mean each of Ronald Burkle, [●] and [●].
“ Person ” means an individual, corporation, partnership, limited liability company, association, fund, trust or other entity or organization, including a Governmental Authority.
“ Preemptive Rights Exercise Notice ” has the meaning ascribed to it in Section 4.03(b)
“ Prime Rate ” shall mean the rate of interest published from time to time in The Wall Street Journal Eastern Edition, and designated as the prime rate.
“ Qualified IPO ” means the first public offering, following the Effective Date, of common Company Securities, or of Equity Securities of another entity that, directly or indirectly, controls the Company or of any legal entity in which the Company is converted in order to effect the first public offering, in each case registered under the Securities Act of 1933 (other than pursuant to or on Form S-4), that results in such common Company Securities, or the Equity Securities of such entity, being listed on the New York Stock Exchange or NASDAQ Global Select Market, with an underwritten public offering that generates at least $100 million of primary proceeds (net of underwriting discounts or commissions).
“ Registration Rights Agreement ” has the meaning ascribed to it in Section 9.12
“ Replacement Apollo Observer Candidates ” has the meaning ascribed to it in Section 5.12
“ Replacement MCR Director Candidates ” has the meaning ascribed to it in Section 5.03(a)
“ Replacement RC Director Candidates ” has the meaning ascribed to it in Section 5.07
“ Representatives ” has the meaning ascribed to such term in the definition of “ Confidential Information.”
“ RC Director ” has the meaning ascribed to it in Section 5.01(a)(d).
“ ROFO Acceptance Notice ” has the meaning ascribed to it in Section 9.04(d)
“ ROFO Acceptance Period ” has the meaning ascribed to it in Section 9.04(d)
“ ROFO Election Period ” means either the Minority ROFO Election Period, the DA ROFO Election Period or the Yucaipa ROFO Election Period, as applicable.
“ ROFO Holder ” means either the Minority ROFO Holder, Yucaipa or the Yucaipa ROFO Holder, as applicable.
“ ROFO Offer ” means either the Minority ROFO Offer, the DA ROFO Offer or the Yucaipa ROFO Offer, as applicable.
“ ROFO Sale Notice ” means either the Minority ROFO Sale Notice or the Yucaipa ROFO Sale Notice, as applicable.
“ ROFO Sale Trigger ” has the meaning ascribed to it in Section 9.04(g)
“ ROFO Shares ” means the Minority ROFO Shares, Yucaipa ROFO Shares, DA ROFO Shares and/or Other ROFO Shares, as applicable.
“ Second Extension ” means the extension of the term of this Agreement until December 31, 2030, in the event the Consolidated Adjusted EBITDA of the Company for the Measurement Period ended prior to or on December 31, 2029, is equal to or greater than $350,000,000, unless Yucaipa and the MCR Investor agree otherwise (and subject to the approval of the Board).
“ Second Extension Determination Date ” means the earlier of (i) the date which is 45 days after December 31, 2029, or (ii) the date that the Company's customary year-end closing procedures for 2029 are substantially final.
“ Second Meeting ” has the meaning ascribed to it in Section 5.11
“ Second Notice ” has the meaning ascribed to it in Section 4.03(b)
“ Securities ” means, with respect to any Person, (a) any Equity Securities or (b) any debt securities.
“ Securities Act ” means the Securities Act of 1933 and the rules and regulations promulgated thereunder.
“ Share ” and “ Share(s) ” have the meanings ascribed to them in Section 3.01
“ Shareholder ” means, at any time, for as long as he, she or it holds any Shares, each of (a) Yucaipa, the MCR Investor and the other Persons listed on Exhibit A as of the date of this Agreement and (b) any other Person who, after the date of this Agreement, is admitted to the Company as a Shareholder under this Agreement in accordance with the terms of this Agreement. For the avoidance of doubt, a Person shall not be admitted as a Shareholder of the Company until such Person has executed and delivered a fully executed Joinder to the Company in accordance with Article 9
“ Shareholder Percentage ” means, with respect to any Shareholder as of any time, the percentage of outstanding Shares owned by such Shareholder at such time, calculated on a fully-diluted basis.
“ Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, joint venture, or other legal entity of which more than fifty percent (50%) of the outstanding voting securities or other equity interests are owned, directly or indirectly, by such Person.
“ Tag-Along Notice ” has the meaning ascribed to it in Section 9.08(a)
“ Tag-Along Notice Period ” has the meaning ascribed to it in Section 9.08(c)
“ Tag-Along Offer ” has the meaning ascribed to it in Section 9.08(b)
“ Tag-Along Portion ” means, with respect to the Tagging Shareholder and for any Tag-Along Sale, (a) the Shares owned by such Shareholder immediately prior to such Tag-Along Sale, multiplied
by (b) a fraction (i) the numerator of which is the number of Shares proposed to be Transferred by the Tag-Along Seller in such Tag-Along Sale and (ii) the denominator of which is the aggregate number of Shares owned by all the Shareholders immediately prior to such Tag-Along Sale; provided that in a ROFO Tag-Along Sale, the Tag-Along Portion of a Tagging Shareholder shall be all (and not less than all) of the Shares owned by such Tagging Shareholder.
“ Tag-Along Response Notice ” has the meaning ascribed to it in Section 9.08(c)
“ Tag-Along Right ” has the meaning ascribed to it in Section 9.08(c)
“ Tag-Along Sale ” means a MCR Investor Tag-Along Sale, a Yucaipa Tag-Along Sale or a ROFO Tag-Along Sale, as applicable.
“ Tag-Along Seller ” means a MCR Investor Tag-Along Seller, a Yucaipa Tag-Along Seller or a ROFO Tag-Along Seller, as applicable.
“ Tagging Shareholders ” has the meaning ascribed to it in Section 9.08(a)
“ Taxable Year ” means the calendar year.
“ Transaction Documents ” means the Merger Agreement and any other document contemplated by such agreement, or any document or instrument delivered in connection with the Merger Agreement.
“ Transfer ” means, with respect to any Company Securities, (a) when used as a verb, to sell, assign, dispose of, exchange, pledge, Encumber, hypothecate or otherwise transfer such Company Securities or any participation or interest therein, whether directly or indirectly (including pursuant to a derivative transaction), or agree or commit to do any of the foregoing and (b) when used as a noun, a direct or indirect sale, assignment, disposition, exchange, pledge, Encumbrance, hypothecation, or other transfer of such Company Securities or any participation or interest therein or any agreement or commitment to do any of the foregoing. “ Transferred ” and “ Transferring ” shall have correlative meanings.
“ Transfer Agent ” means the Company's transfer agent.
“ Treasury Regulations ” means the final, temporary and proposed regulations promulgated under the Code by the U.S. Department of the Treasury.
“ Trigger Date ” means the earlier of (i) the date which is 45 days after December 31, 2028, or (ii) the date that the Company's customary year-end closing procedures for 2028 are substantially final.
“ Vice Chair ” has the meaning ascribed to it in Section 5.21
“ Yucaipa ” means [●].
“ Yucaipa Directors ” has the meaning ascribed to it in Section 5.01(a)(a)
“
Yucaipa Offering Shareholder ” has the meaning ascribed to it in Section 9.04(b)(a)
“ Yucaipa ROFO Election Period ” has the meaning ascribed to it in Section 9.04(b)(b)
“ Yucaipa ROFO Holder ” has the meaning ascribed to it in Section 9.04(b)(b)
“ Yucaipa ROFO Offer ” has the meaning ascribed to it in Section 9.04(b)(b)
“ Yucaipa ROFO Offer Price ” has the meaning ascribed to it in Section 9.04(b)(b)
“ Yucaipa ROFO Sale Notice ” has the meaning ascribed to it in Section 9.04(b)(a)
“ Yucaipa ROFO Shares ” has the meaning ascribed to it in Section 9.04(b)(a)
“ Yucaipa Tag-Along Sale ” has the meaning ascribed to it in Section 9.08(a)
“ Yucaipa Tag-Along Seller ” has the meaning ascribed to it in Section 9.08(a)
Section 1.02 General Interpretive Principles. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to “dollars” or “$” shall mean United States dollars. All references to a particular statute or other Applicable Law shall be deemed to include all rules and regulations thereunder in effect from time to time and any amendments or successors to such statutes or Applicable Laws. References to any Person (including any business unit or division thereof) include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. The Parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties hereto and no presumption or burden of proof will arise favoring or disfavoring any Party hereto because of the authorship of any provision of this Agreement.
ARTICLE 2
Implementation
Section 2.01 Certificate of Incorporation . If and only to the extent that there is any conflict between the provisions of this Agreement on the one hand and the Certificate of Incorporation, Bylaws or other organization documents of the Company on the other hand, this Agreement shall, as between the Parties hereto, prevail, provided, that the Parties hereto will, if so requested by any Shareholder and to the extent permitted by Applicable Law, as soon as practicable amend, or cause to be amended, the Certificate of Incorporation, the Bylaws or such other organization document of the Company, as applicable, to remove any such conflict and reflect the terms set forth in this Agreement.
Section 2.02 Exercise of Shareholder Rights . The Shareholders shall each vote the Shares held by them (to the extent applicable), grant powers of attorney, execute documents and take all other reasonable actions in their respective power and authority as a shareholder of the Company, in a manner consistent with the rights and obligations of the Parties under this Agreement so as to effectuate and preserve the intent of the Parties as set out herein.
ARTICLE 3
Capital Structure and Organization
Section 3.01 Capital Structure The Company shall initially have two (2) classes of stock: (a) Class A common stock, par value of $0.01, of the Company (“ Class A Common Stock”) and (b) Class B common stock, par value of $0.01, of the Company (“ Class B Common Stock ”, and together with the Class A Common Stock, the “ Shares ”, and each, a “ Share ”).
Section 3.02 Initial Shareholdings . The name, address and Shareholder Percentage of each Shareholder are set forth on Exhibit A hereto, as such Schedule may be amended from time to time to reflect the admission of any additional Shareholders, the acquisition of additional Shares by any Shareholder, the transfer of Shares and the repurchase of Shares, each as permitted or required by the terms of this Agreement.
Section 3.03 Additional
Capital Contributions
(a) No Shareholder shall be obliged to provide any debt or equity funding to the Company or any of its Subsidiaries whether by way of subscription for further Securities or otherwise, except to the extent permitted by this Agreement and expressly agreed by such Shareholder in writing after the Effective Date, which each Shareholder may or may not do in its sole discretion.
(b) No Shareholder shall be obliged to provide or procure any form of guarantee or other security or indemnity or counter-indemnity for any obligation or indebtedness of the Company of any of its Subsidiaries, except to the extent permitted by this Agreement and expressly agreed by such Shareholder in writing after the Effective Date, which each Shareholder may or may not do in its sole discretion.
Section 3.04 Conversions and Transfers of Class B Common Stock
(a) Each share of Class B Common Stock shall automatically, without any further action, convert into one share of Class A Common Stock immediately following a Transfer to any person other than (i) one or more Permitted Transferees of the holder of such Class B Common Stock, (ii) another Initial Class B Common Stock Holder, or (iii) one or more of such other Initial Class B Common Stock Holder's Permitted Transferees. Such conversion shall occur automatically without the need for any further action by the holders of such shares and whether or not the certificates representing such shares (if any) are surrendered to the Company or its Transfer Agent.
(b) At such time the Initial Class B Common Stock Holders and their Permitted Transferees collectively own less than 15% of the shares of the Company's total outstanding Common Shares, each issued share of Class B Common Stock shall automatically, without any further action, convert into one share of Class A Common Stock. Following such date, the Company may no longer issue any additional shares of Class B Common Stock. Such conversion shall occur automatically without the need for any further action by the holders of such shares and whether or not the certificates representing the shares (if any) are surrendered to the Company or its Transfer Agent.
ARTICLE 4
Certain Rights and Obligations of Shareholders
Section 4.01 Withholding . Except as otherwise expressly provided in this Agreement, the Company and any Subsidiary of the Company shall be entitled to deduct and withhold from any amount payable to or distributable to (or deemed for appliable tax purposes to be payable or distributable to) any Shareholder or any of its Affiliates (other than the Company or a Subsidiary) pursuant to this Agreement any amounts required to be deducted or withheld with respect to the making of such payment under any provision of any Applicable Law, including for sake of clarity, taking into account any reduced rate of, or exemption from, any withholding tax pursuant to Applicable Law, including any applicable income tax treaty, or otherwise. If any amounts are so deducted or withheld and remitted to the appropriate Governmental Authority, such amounts shall be treated for all purposes of this Agreement as having been paid to such Shareholder or any of its Affiliates (other than the Company or a Subsidiary) in respect of which such deduction or withholding was made. If the Company is required to make any payment in respect of any amounts of taxes contemplated by this Section 4.01 in excess of amounts that would otherwise then be currently distributed or paid to the Shareholder in cash (as determined by the Board), the Shareholder to which such taxes relate shall be obligated to indemnify the Company for such taxes in excess of such cash payment or distribution, and upon demand by the Company, the Shareholder on whose behalf such withholding was made shall pay over to the Company such taxes plus interest thereon at a rate equal to the Prime Rate as of the date of the withholding, plus 2.0% per annum (which amounts may, at the election of the Company, be set off against any subsequent payments or distributions from the Company to the Shareholder). Each Shareholder agrees to furnish the Company with such representations, information and forms as the Company may reasonably request to assist it in determining the extent of, and in fulfilling, the Company's withholding obligations and the Company's reporting obligations to any of its Subsidiaries. Without limitation of any Person's rights to reimbursement and indemnification under this Agreement, each Shareholder hereby agrees to reimburse the Company for any claims, liability, expense or obligation incurred by or imposed on any such Person with respect to withholding taxes required to be made (or which any such Person fails to make) on behalf of or with respect to such Shareholder. This Section 4.01 shall survive any Transfer, any withdrawal and any dissolution or termination of the Company.
Section 4.02 Voting
(a) Each share of Class A Common Stock shall entitle the record holder thereof as of the applicable record date to one (1) vote per share in person or by proxy on all matters submitted to a vote of the holders of Class A Common Stock, whether voting separately as a class or otherwise.
(b) Each share of Class B Common Stock shall entitle the record holder thereof as of the applicable record date to ten (10) votes per share in person or by proxy on all matters submitted to a vote of the holders of Class B Common Stock, whether voting separately as a class or otherwise.
(c) Except as otherwise required in this Agreement or by Applicable Law, the holders of shares of Class A Common Stock and Class B Common Stock shall vote together as a single class on all matters submitted to a vote of stockholders of the Company. Other than as required by Applicable Law, the affirmative vote of the holders of a majority in voting power of the issued and outstanding Shares and entitled to vote on the matter shall be the act of the Shareholders of the Company, except to the extent any other provision of this Agreement (including Section 5.16,
Section 5.17 Section 5.18 and Section 12.05 ) requires a different vote or requires the consent of a particular Shareholder or group, class or series of Shareholders.
(d) The presence in person or by proxy of Shareholders representing a majority of the voting power of the issued and outstanding Shares entitled to vote shall constitute a quorum for the conduct of business at any meeting of the shareholders of the Company, unless or except to the extent required by Applicable Law. Where a separate vote by a class or classes or series is required, a majority of the shares of such class or classes or series present in person or represented by proxy shall constitute a quorum entitled to take action with respect to that vote on that matter.
Section 4.03 Preemptive Rights
(a) Other than for issuances of Equity Securities contemplated in Section 4.03(e) (f) or (g) , the Company shall give the Shareholders written notice (an “ Issuance Notice ”) of any proposed issuance by the Company of any Equity Securities at least thirty (30) Business Days prior to the proposed issuance date. The Issuance Notice shall specify the price at which such Equity Securities are to be issued and the other material terms of the issuance (including the terms of the Equity Securities proposed to be issued) and the number of Equity Securities each Shareholder is entitled to subscribe for in accordance with this Section 4.03(a) . Subject to Section 4.03(e) , each of the Shareholders shall be entitled to subscribe for (or to cause its Permitted Transferees to subscribe for) up to its respective Shareholder Percentage of the Equity Securities proposed to be issued, at the price and on the terms specified in the Issuance Notice. In the event that the Company proposes to issue common stock, or any security that is convertible into or exercisable for common stock, each holder of Class B Common Stock shall have the right to participate in such issuance by purchasing an equivalent number of Class B Common Stock (or securities convertible into or exercisable for Class B Common Stock, as applicable), and each holder of Class A Common Stock shall have the right to participate by purchasing an equivalent number of Class A Common Stock (or securities convertible into or exercisable for Class A Common Stock, as applicable), in each case in accordance with their respective Shareholder Percentages and on the same terms and conditions as set forth in the Issuance Notice.
(b) If any Shareholder desires to subscribe for or to have any of its Permitted Transferees subscribe for any or all of its Shareholder Percentage of the Equity Securities specified in the Issuance Notice, it shall deliver an irrevocable written notice to the Company (each a “ Preemptive Rights Exercise Notice ”) of its election to subscribe for such Equity Securities within thirty (30) Business Days' of receipt of the Issuance Notice. The Preemptive Rights Exercise Notice shall specify the number (or amount) of Equity Securities to be subscribed for by such Party or its Permitted Transferees, which may include (i) up to such Party's Shareholder Percentage, and (ii) any additional number (or amount) of Equity Securities such Party is willing to subscribe for if available. The Preemptive Rights Exercise Notice shall constitute exercise by such Party of its rights under this Section 4.03 and a binding agreement of such Party or such Party's applicable Permitted Transferees to subscribe for, at the price and on the terms specified in the Issuance Notice, the number (or amount) of Equity Securities specified in the Preemptive Rights Exercise Notice, with such subscription and issuance to be consummated as promptly as reasonably practicable. If, at the termination of such thirty (30) Business Day period, any Shareholder shall not have delivered a Preemptive Rights Exercise Notice to the Company, such Party shall be deemed to have waived all of its rights under this Section 4.03 with respect to the subscription for such Equity Securities. Promptly following the termination of such thirty (30) Business Day period, the Company shall deliver to each of the Shareholders a copy of any Preemptive Rights Exercise Notice it has received or notify each of the Shareholders that no Preemptive Rights Exercise Notices have been received (each a “ Second Notice ”).
(c) If a Shareholder fails to exercise its preemptive rights under this Section 4.03 or elects to exercise such rights with respect to less than its Shareholder Percentage of the issuance and another Shareholder has exercised its rights under this Section 4.03 with respect to its entire Shareholder Percentage, such other Shareholder shall be entitled to subscribe for any or all of the remaining portion of the issuance, up to the maximum number of Equity Securities such Shareholder indicated in its Preemptive Rights Exercise Notice. If more than one (1) such Shareholder elects to subscribe for all or any portion of the remaining Equity Securities, such Equity Securities shall be allocated among such subscribing Shareholders on a pro rata basis based on their respective Shareholder Percentages (excluding any Shareholder that failed to exercise its preemptive rights under this Section 4.03 or elected exercise such rights with respect to less than its Shareholder Percentage), up to the maximum number of Equity Securities each such Shareholder has indicated in its Preemptive Rights Exercise Notice, until all Equity Securities have been allocated or all subscribing Shareholders have subscribed for the maximum number of shares they indicated they were willing to purchase in their respective Preemptive Rights Exercise Notice.
(d) The Company shall have one hundred eighty (180) calendar days from the date of the Issuance Notice to consummate the proposed issuance of any or all of such Equity Securities that the Shareholders have not elected to subscribe for at a price equal to or greater than the price specified in the Issuance Notice and otherwise upon terms that are not less favorable to the Company than those specified in the Issuance Notice; provided , that, if any Governmental Approvals are required in connection with such issuance, such one hundred eighty (180) calendar day period shall be extended until the expiration of five (5) Business Days following the date on which all Governmental Approvals are obtained and any applicable waiting periods under Applicable Law have expired or been terminated, but in no event will such period be extended for more than an additional ninety (90) calendar days. If the Company proposes to issue any such Equity Securities after such one hundred eighty (180) calendar day (or longer, as permitted by the preceding sentence) period, it shall again comply with the procedures set forth in this Section 4.03
(e) Notwithstanding the foregoing and any other provision of this Section 4.03 , no Shareholder shall be entitled to subscribe for Equity Securities under this Section 4.03 in connection with issuances of Equity Securities (i) to employees of the Company or any of its Subsidiaries pursuant to employee benefit plans, incentive equity plans or other arrangements, if any, approved by the Board in accordance with the terms of this Agreement, (ii) to any Person that is not a Shareholder or Affiliate thereof as consideration in any acquisition, investment, merger, amalgamation, consolidation or other strategic transaction (such as a joint venture, marketing or distribution arrangement, or technology transfer or development arrangement) approved by the Board in accordance with the terms of this Agreement, (iii) where the purchase price payable by such Shareholder is less than $50,000 in the aggregate for such issuance (or series of related issuances) pursuant to this Section 4.03(e) (iii), (iv) as an equity kicker, incentive or similar arrangement to any lender or other provider of debt financing (other than Yucaipa or The Yucaipa Companies LLC or any of their respective controlled Affiliates, including any investment fund or investment vehicle sponsored, managed or controlled by The Yucaipa Companies LLC or its affiliated investment managers) in connection with any debt financing transaction, (v) in connection with the exercise or conversion of any instrument that is convertible into or exercisable or exchange for Equity Securities where the initial issuance of such instrument was made in compliance with this Section 4.03 as contemplated in such instrument, (vi) issued to Shareholders on a pro rata basis based on Shareholders' Shareholder Percentage in connection with any stock splits, dividends, combinations and reclassifications, and anti-dilution adjustments pursuant to the terms of an Equity Security that was issued in compliance with this Section 4.03 , or (vii) issued in accordance with Section 4.03(g) , but subject to Section 4.03(g)
(f) Notwithstanding anything to the contrary in this Section 4.03 , in no event shall a Shareholder have a right to subscribe for Equity Securities pursuant to this Section 4.03 if such Shareholder is not, at the time of such issuance, an “accredited investor” (as defined in Regulation D promulgated under the Securities Act) or if the issuance of the applicable interests to such Shareholder would require registration under the Securities Act.
(g) Notwithstanding anything to the contrary in this Section 4.03 , in the case the Board determines to issue Equity Securities to fund emergency capital required by the Company as determined in good faith by the Board or the Board otherwise determines in good faith that delaying the application of the foregoing provisions in connection with an issuance of Equity Securities is in the best interest of the Company, the Company and its Subsidiaries may issue Equity Securities to any Person (including a third- party purchaser) in such offering of Equity Securities approved by the Board without first complying with the foregoing provisions of this Section 4.03 provided , that, the Company will, within thirty (30) days following the closing of such Equity Security issuance, offer to sell to each Shareholder its Shareholder Percentage of the Equity Securities issued in such issuance, in each case, in a manner which the Board determines in good faith provides each Shareholder with rights substantially similar to the rights set forth in the foregoing provisions of this Section 4.03
(h) The preemptive rights contained in this Section 4.03 shall not apply to an IPO and shall terminate upon the consummation of an IPO.
ARTICLE 5
Board and Officers
Section 5.01 Board Composition
(a) From the Effective Date , the Board shall, subject to change as provided in this Agreement, be comprised of seven (7) directors (each, a “ Director ”), whom shall initially be designated as follows:
(a) Yucaipa shall be entitled to designate three (3) Directors (the “ Yucaipa Directors ”);
(b) the MCR Investor shall be entitled to designate two (2) Directors (the “ MCR Directors ”);
(c) Ashton Kutcher (the “ Designated Director ”); and
(d) Caring shall be entitled to designate one (1) Director (the “ RC Director ”).
(b) At the Effective Date, each Person listed on Exhibit B-2 attached hereto shall be designated as additional non-voting representatives of the Board (the “ Non-Voting Representatives ”). The Non-Voting Representatives shall not have any power as Directors to vote on any action to be taken or matter to be determined by the Board (and for such purposes the number of Directors and number of votes on the Board shall be determined excluding all Non-Voting Representatives). Without limiting the generality of the foregoing, the consent of the Non-Voting Representatives shall not be required for, or counted for purposes of determining, any action to be taken by the Board in writing, and the presence of the Non-Voting Representatives shall not be required or counted for purposes of establishing quorum for the conduct of business of any meeting of the Board. The Non-Voting Representatives shall be entitled to receive the board materials distributed to the Board, subject to appropriate restrictions to protect confidentiality, legal privilege, and conflicts of interest. Each Non-Voting Representatives may at any time and from time to time be removed and replaced by a majority vote of the Directors.
(c) If, (i) a Shareholder (together with its Permitted Transferees) other than the MCR Investor and Caring, holds less than five percent (5%) of the Company's issued and outstanding Common Shares as a result of a Transfer of its Common Shares, (ii) MCR Investor (together with its Permitted Transferees), holds less than [5,555,556] Class A Common Stock (appropriately adjusted for any stock splits, stock dividends or other similar events), or (iii) Caring (together with his Permitted Transferees), holds a number of shares of Common Stock that is less than 50% of the number of shares of Common Stock Caring holds on the Effective Date (such number to be appropriately adjusted for stock splits, stock dividends and other similar events), such Shareholder shall no longer have the designation rights provided to it pursuant to Section 5.01(a) Section 5.03 Section 5.04 Section 5.05 or Section 5.08
(d) Upon the earliest to occur of (i) the occurrence of the Trigger Date if at such time the Consolidated Adjusted EBITDA Threshold has not been met, (ii) the Second Extension Determination Date, if the First Extension has occurred and the conditions for the Second Extension have not been satisfied by such date, or (iii) December 31, 2030 (the “ Director Transfer Date ”), the number of MCR Directors shall be reduced to one (1) Director, and the number of Designated Directors shall be increased by one (1) Director; provided that if, as a result of a Force Majeure Event, Consolidated Adjusted EBITDA for any Measurement Period ending prior to December 31, 2028 is less than 60% of Consolidated Adjusted EBITDA for the equivalent Measurement Period ending in the immediately preceding year, then notwithstanding the foregoing the Director Transfer Date shall occur on the Second Extension Determination Date.
(e) The initial list of Directors of the Company as of the date hereof is attached hereto as Exhibit B-1
Section 5.02 Resignations, Removals and Vacancies
(a) Any Director may resign at any time by giving written notice to the Board. The resignation of any Director shall take effect upon receipt of notice of such resignation or at such later time as shall be specified in such notice, and, unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it effective.
(b) Subject to Section 5.03 Section 5.04 Section 5.05 and Section 5.08 , any Director may be removed as a Director at any time, with or without cause, by the Shareholder or group of Shareholders entitled to designate such Director pursuant to Section 5.01 (which action may be taken by written consent of such holders). For purposes of this Section 5.02(b) , the Shareholders entitled to designate the Designated Director(s) are the Shareholders holding a majority of the voting power of the issued and outstanding Shares of Common Shares.
An amount equal to 25% of MCR Investor's proposed Share count.
(c) Subject to Section 5.03 Section 5.04 Section 5.05 and Section 5.08 , if at any time a vacancy is created on the Board by reason of the death, removal or resignation of any Director, only the Shareholder or group of Shareholders entitled to designate such Director pursuant to Section 5.01 may appoint a designee to fill such vacancy or vacancies (which action may be taken by written consent of such holders). Any vacancy created on the Board by reason of any increase in the number of Directors shall be filled by the Board. For purposes of this Section 5.02(c) , the Shareholders entitled to designate the Designated Director(s) are the Shareholders holding a majority of the voting power of the issued and outstanding Shares of Common Shares.
Section 5.03 Replacement of the MCR Directors
(a) If any then-current MCR Director ceases to serve as a MCR Director by reason of death, removal or resignation, then, subject to Section 5.01(c) Section 5.01(d) and the corresponding provisions of Section 5.08 , the MCR Investor shall be entitled to nominate a replacement for such MCR Director in accordance with this Section 5.03 . The MCR Investor shall provide Yucaipa a written notice setting forth the names of three (3) candidates for such replacement (the “ Replacement MCR Director Candidates ”) within five (5) Business Days of such event. Within fifteen (15) Business Days of Yucaipa's receipt of such notice, Yucaipa shall select one (1) of the Replacement MCR Director Candidates to replace the departing MCR Director.
(b) At any time that the MCR Investor is entitled to designate two (2) MCR Directors (x) if at any time there is a vacancy in one (but not two) of the MCR Director positions, the remaining MCR Director shall be entitled to cast two (2) votes in his or her capacity as a Director for any resolution or other decision of the Board and (y) if at any time there is a vacancy in both of the MCR Director positions, the Board shall not pass any resolutions or otherwise make any decisions until replacements for the departing MCR Directors have been designated to the Board in accordance with this Section 5.03 provided, that, in the case of this clause (y), during such time if the Board wishes to adopt any resolution or otherwise make any decision, the Board shall provide written notice of the proposed resolution or decision to the MCR Investor and the MCR Investor shall be entitled to appoint a representative to the Board until the replacements for the departing MCR Directors have been designated to the Board in accordance with Section 5.03(a) , and such representative shall be entitled to cast two (2) votes in any such resolution or decision as if such representative was designated as the MCR Directors during such time.
Section 5.04 Replacement of the Yucaipa Directors . From the Effective Date, subject to Section 5.01(c) and the corresponding provisions of Section 5.08 , if any then-current Yucaipa Director ceases to serve as a Yucaipa Director by reason of death, removal or resignation, Yucaipa shall be entitled to designate a replacement for such Yucaipa Director; provided , that, prior to the Director Transfer Date or, if earlier, the time that the number of MCR Directors is reduced to zero pursuant to Section 5.01(c) , if any designee is not a Permitted Yucaipa Designee, Yucaipa shall consult with the MCR Investor in good faith regarding such proposed designation prior to such designee being designated as a Yucaipa Director pursuant to Section 5.01(a)(a) . At any time that the Yucaipa Group is entitled to designate the Yucaipa Directors, from the period beginning on the date on which any then-current Yucaipa Director ceases to serve as a Yucaipa Director and ending on the date on which a replacement Yucaipa Director is designated to the Board in accordance with this Section 5.04 , the remaining Yucaipa Directors shall, in the aggregate, be entitled to cast a number of additional votes equal to the number of such vacancies in their respective capacities as Directors for any resolution or other decision of the Board. In the event that all of the Yucaipa Directors cease to serve as Yucaipa Directors at the same time by reason of death, removal or resignation, the Board shall not pass any resolutions or otherwise make any decisions until replacements for the departing Yucaipa Directors have been designated to the Board in accordance with this Section 5.04 provided, that, during such time if the Board wishes to adopt any resolution or otherwise make any decision, the Board shall provide written notice of the proposed resolution or decision to Yucaipa and Yucaipa shall be entitled to appoint a representative to the Board until the replacements for the departing Yucaipa Directors have been designated to the Board in accordance with this Section 5.04 , and such representative shall be entitled to cast a number of votes equal to the number of vacant Yucaipa Director positions in any such resolution or decision as if such representative was designated as the Yucaipa Directors during such time.
Section 5.05 Appointment of Designated Directors . From the Effective Date and until the number of MCR Directors has been reduced to zero pursuant to Section 5.01(c) , unless otherwise provided herein, Designated Director vacancies shall be filled as follows:
(a) The MCR Investor and Yucaipa shall promptly and in good faith discuss and use their reasonable best efforts to agree upon the Person to be appointed to fill the vacancy by written consent within thirty (30) days following the date on which the vacancy arises. If the MCR Investor and Yucaipa are unable to agree upon a replacement Designated Director within such thirty (30) day period, the parties shall continue to negotiate in good faith for an additional fifteen (15) days.
(b) If, after such additional fifteen (15) day period, the parties have not reached agreement, the vacancy shall be filled in accordance with the dispute resolution procedure set forth in Section 12.13
Following the date that the number of the MCR Directors has been reduced to zero pursuant to Section 5.01(c) , the Board shall be entitled to fill any Designated Director vacancy.
Section 5.06 [Reserved]
Section 5.07 Replacement of the RC Director
(a) If any then-current RC Director ceases to serve as a RC Director by reason of death, removal or resignation, then, subject to Section 5.01(c) , Caring shall be entitled to nominate a replacement for such RC Director in accordance with this Section 5.07 . Caring shall provide Yucaipa a written notice setting forth the names of three (3) candidates for such replacement (the “ Replacement RC Director Candidates ”) within five (5) Business Days of such event. Within fifteen (15) Business Days of Yucaipa's receipt of such notice, Yucaipa shall select one (1) of the Replacement RC Director Candidates to replace the departing RC Director.
(b) If Caring ceases to have any designation rights pursuant to Section 5.01(c) , then (i) the Company shall immediately remove the then-current RC Director, (ii) the number of RC Directors shall be reduced to zero, and (iii) the number of Designated Directors shall be increased by one. The resulting Designated Director vacancy shall be filled in accordance with Section 5.05
Section 5.08 Changes in Classification of Directors
(a) If the number of MCR Directors is reduced pursuant to Section 5.01(d) , then Yucaipa and MCR Investor shall immediately remove one (1) of the MCR Directors and shall replace the MCR Director in the same manner as a Designated Director is replaced pursuant to Section 5.05 . If the MCR Investor loses the right to appoint the MCR Directors pursuant to Section 5.01(c) , then if (i) immediately prior to such time the MCR Investor was entitled to appoint two (2) directors, (x) the number of MCR Directors shall be reduced to zero, (y) the number of Yucaipa Directors shall be increased by one (1) and Yucaipa shall immediately be entitled to remove and replace the former MCR Director that becomes a Yucaipa Director and (z) the number of Designated Directors shall be increased by one and the Board shall immediately be entitled to remove and replace the former MCR Director that becomes a Designated Director, and (ii) immediately prior to such time the MCR Investor was entitled to appoint one (1) director, (x) the number of MCR Directors shall be reduced to zero, (y) the number of Yucaipa Directors shall be increased by one (1) and Yucaipa shall immediately be entitled to remove and replace the former MCR Director that becomes a Yucaipa Director.
(b) If Yucaipa loses the right to appoint the Yucaipa Directors pursuant to Section 5.01(c) , then Shareholders holding a majority of the voting power of the outstanding Common Shares shall be entitled to remove the former Yucaipa Directors and replace them with an equal number of Directors.
Section 5.09 Decision-making of the Board
(a) The Board shall meet at such times and at such places as may be necessary for the Company's business as determined by the Board.
(b) Except as otherwise required by Applicable Law or by this Agreement, each Director shall have one (1) vote and, subject to Section 5.03 and Section 5.15 , the Board shall adopt its resolutions by a majority of votes cast. In case of a tied vote, the proposal is rejected.
(c) Each Director may grant a written proxy to any other Director to represent him or her at a meeting of the Board, and to cast his or her vote at such meeting.
(d) Directors may participate in a meeting of the Board thereof by means of a conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear, and be heard by, one another. Participation in a meeting pursuant to this Section 5.09(d) shall constitute presence in person at such meeting pursuant to Section 5.11
Section 5.10 Notice . Meetings of the Board shall be held when called by the Chairman or a majority of the Directors, upon not less than two (2) Business Days' advance written notice to the Directors. Attendance by a Director at any meeting of the Board shall constitute waiver of notice of such meeting. Additionally, a waiver in writing signed by the Director entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.
Section 5.11 Quorum . The presence in person or by proxy of a majority of Directors shall constitute a quorum for the conduct of business at any meeting of the Board; provided , that, prior to the Director Transfer Date, such majority includes at least one Yucaipa Director and one MCR Director; provided, further, following the Director Transfer Date, if the MCR Director is unable to attend a meeting of the Board, the MCR Investor may designate an alternative representative of the MCR Investor to attend such meeting as a non-voting observer, which shall be one of the Permitted MCR Investor Designees or a replacement MCR Director who has previously been designated to the Board pursuant to Section 5.03 . Such alternative representative shall be subject to, and shall comply with, all confidentiality obligations applicable to a MCR Director. If the MCR Director is unable to attend a meeting of the Board, the MCR Investor shall, in any event, be entitled to receive all materials distributed to the Board in connection with such meeting. Notwithstanding the foregoing, prior to the Director Transfer Date, if a meeting of the Board is called pursuant to Section 5.10 where a quorum is not present due to the absence of at least one MCR Director, and a second meeting of the Board is called pursuant to Section 5.10 at least five (5) Business Days later (“ Second Meeting ”), then at the Second Meeting, the presence in person or by proxy of a majority of Directors, where such majority includes at least one Yucaipa Director, shall constitute a quorum for the conduct of business of the Board.
Section 5.12 Board Observers . The Apollo Investor may appoint one non-voting observer to the Board (“ Apollo Observer ”), which shall be one of the Permitted Apollo Observers, for so long as the Apollo Investor holds more than [2,777,777] Class A Common Stock (appropriately adjusted for any stock splits, stock dividends or other similar events). The non-voting observer will be entitled to receive the board materials distributed to the Board (including notices in accordance with Section 5.10 ), including board materials distributed at any meeting of any committee of the Board that effectively functions as the Board, and shall be entitled to attend all meetings of the Board (and any such committee acting in lieu of the Board), subject, in each case, to appropriate restrictions to protect confidentiality, legal privilege, and conflicts of interest (provided that the Board shall inform the Apollo Observer of one or more general reasons for excluding the Apollo Observer from any meeting or withholding or redacting any materials and the general nature of such meeting or materials, as applicable). The Apollo Observer may appoint any person who is a Permitted Apollo Observer as his/her alternate to attend any meeting of the Board. If any then-current Apollo Observer ceases to serve as the non-voting observer by reason of death, removal or resignation, the Apollo Investor shall be entitled to appoint a replacement non-voting observer by either appointing a Permitted Apollo Observer, or by providing Yucaipa a written notice setting forth the names of three (3) candidates for such replacement (the “ Replacement Apollo Observer Candidates ”) within five (5) Business Days of such event. Within fifteen (15) Business Days of Yucaipa's receipt of such notice, Yucaipa shall select one (1) of the candidates to replace the departing Apollo Observer. If at any time the Yucaipa Directors and MCR Directors sit at the board of any Subsidiary of the Company that effectively functions as the primary “board” of the Company and its Subsidiaries considered as a whole, the Apollo Observer shall be appointed as a non-voting observer to such board.
An amount equal to 50% of the Apollo Investor's proposed Share count.
Section 5.13 Action Without a Meeting . The Board may adopt resolutions in writing, without holding a meeting, provided all Directors vote in favor of the proposed resolutions.
Section 5.14 Committees of the Board . The Board may designate one (1) or more committees of the Board. Each committee of the Board shall consist of two (2) or more Directors. Prior to the Director Transfer Date, each of the MCR Investor and Yucaipa shall be entitled to appoint a representative to each committee. Following the Director Transfer Date, the MCR Investor shall at any time be permitted to designate one (1) MCR Director as a non-voting observer to any committee of the Board and shall be entitled to attend (and receive reasonable advance notice of) all meetings of such committee and to receive all materials prepared for the members of such committee. Subject to Section 5.15 and Section 5.16 , any committee, to the extent permitted by Applicable Law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. Each committee shall keep regular minutes and report to the Board when required.
Section 5.15 Board Powers
(a) The Board shall, subject to the consent or approval rights or requirements set forth in Section 5.16 Section 5.17 Section 5.18 and Section 12.05, have full power and authority to manage the business affairs of the Company to the fullest extent allowed under the Delaware General Corporation Law.
(b) Without limiting the generality of Section 5.15(a) or the consent or approval rights or requirements set forth in Section 5.16 Section 5.17 Section 5.18 and Section 12.05 , the Company shall not, and shall cause its Subsidiaries not to, directly or indirectly, do, any of the following without first obtaining the affirmative approval of the Board:
(a) adopting the Approved Budget;
(b) deviating from an Approved Budget in a manner that would result in the Company or its Subsidiaries being obligated to pay or being reasonably expected to pay amounts that would result in the Company or its Subsidiaries exceeding one hundred and ten percent (110%) of the costs or expenses set forth in the applicable Approved Budget (including any costs for any capital expenditures contemplated in the applicable Approved Budget);
(c) amending this Agreement or any other organizational document or stockholders, operating or similar agreement of the Company or any of its Subsidiaries;
(d) changing the name or principal office of the Company;
(e) except as set forth in Section 9.09 , entering into or consummating or causing the Company to enter into or consummate a transaction constituting a Change of Control of the Company;
(f) initiating a process with respect to, or consummating, an IPO;
(g) other than as otherwise previously and specifically approved in the applicable Approved Budget, causing the Company to acquire any equity interest in any corporation, company, voluntary association, partnership, joint venture, limited liability company, trust, estate, unincorporated organization or other entity or disposing of any such equity interest that has been acquired after the date hereof;
(h) except in connection with Transfers in accordance with Article 9 , admitting any Person as an additional Shareholder;
(i) approving, amending or waiving the Related-Person Transactions Policy of the Company;
(j) other than as otherwise (A) previously and specifically approved in the applicable Approved Budget, (B) entered into prior to the execution of this Agreement, (C) permitted as a transaction by the Related-Person Transactions Policy of the Company that is from time to time approved by the Board, or (D) listed as a pre-approved Affiliate Transaction on Exhibit C , entering into, amending or modifying the terms of, any Affiliate Transaction;
(k) creating another class or series of shares of the Company or causing the Company to issue, sell, transfer, pledge, dispose of or otherwise Encumber any Securities or interests or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any Securities;
(l) other than as otherwise previously and specifically approved in the applicable Approved Budget, causing the Company to incur, or amending the terms of, any indebtedness for borrowed money, guarantee or assuming any such indebtedness of another Person, issuing or selling warrants or other rights to acquire any debt securities of the Company, entering into any “keep well” or other agreement to maintain any financial condition of another Person, or entering into any arrangement having the effect of any of the foregoing;
(m) causing the Company to (A) declare or pay any dividends on or make any distributions with respect to the Common Shares or other Equity Securities (whether in cash, assets, stock or other securities of the Company) or (B) repurchase, redeem or otherwise acquire any Equity Securities of the Company, in each case, in a single transaction or as a part of series of transactions;
(n) other than as otherwise previously and specifically approved in the applicable Approved Budget, entering into, modifying, amending, terminating or waiving any rights under, any agreement, contract or other instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective assets would be bound (either individually or in the aggregate across a series of related or similar agreements) (A) pursuant to which the Company or its Subsidiaries would pay, or reasonably expect to pay, amounts that would result in the Company or its Subsidiaries exceeding one hundred ten percent (110%) of the costs or expenses set forth in the applicable Approved Budget or (B) otherwise contemplate aggregate payments to or by the Company and its Subsidiaries (collectively) in excess of $20,000,000;
(o) unless otherwise previously and specifically approved in the applicable Approved Budget, entering into any agreements or other arrangements with respect to, or otherwise consummating, the sale, lease, transfer or other disposition of assets or Equity Securities of any Person;
(p) hiring, terminating or amending the employment agreements (including any changes to compensation and/or bonuses) of, any member of the Company and of its Subsidiaries' executive management team, other than the Vice Chair;
(q) initiating or settling any litigation, arbitration or administrative proceeding, in each case, involving an amount at issue in excess of $5,000,000 or any other injunctive or material non-monetary claims;
(r) changing the jurisdiction of incorporation, tax residency or U.S. federal income tax classification of the Company or any material Subsidiary thereof; and
(s) entering into any agreement or binding obligation with respect to, or otherwise committing to do, any of the foregoing.
Section 5.16 Yucaipa Consent Matters Notwithstanding anything else contained in this Agreement to the contrary and without limiting any consent or approval right or requirement set forth in Section 5.15 Section 5.17 Section 5.18 and Section 12.05, the following matters shall require, and the Company shall not, and shall cause its Subsidiaries not to, directly or indirectly, do any of the following without first obtaining the affirmative approval in writing of Yucaipa:
(a) (i) amending the organizational document or stockholders, operating or similar agreement of the Company or any of its Subsidiaries in a manner that materially and disproportionately adversely affects or prejudices Yucaipa (as compared to the other Shareholders) or (ii) amending this Agreement;
(b) issuing any Equity Securities (other than inter-company issuances by the Company or its Subsidiaries to the Company or another Company Subsidiary);
(c) other than as otherwise previously and specifically approved in the applicable Approved Budget, causing the Company to incur, or assuming any, indebtedness for borrowed money or capital expenditures, in each case, in excess of $10,000,000 individually;
(d) adopting, amending or modifying an Approved Budget;
(e) hiring or terminating the Chief Executive Officer, the Chief Financial Officer, Chief Technology Officer, Chief Operating Officer or any other C-Suite officer of the Company;
(f) initiating a process with respect to, or consummating, an IPO;
(g) making any new or changing any existing tax election or taking any other action with respect to tax matters of the Company and its Subsidiaries that would reasonably be expected to have a materially and disproportionately adverse effect on Yucaipa (as compared to the other Shareholders);
(h) fundamentally changing the nature or scope of the business of the Company and its Subsidiaries as conducted on the date hereof; or
(i) entering into any agreement or binding obligation with respect to, or otherwise committing to do, any of the foregoing.
Prior to withholding its approval right under Section 5.16(c) , Yucaipa shall reasonably consult with MCR Investor.
Section 5.17 Other Shareholder Consent Matters . Notwithstanding anything else contained in this Agreement to the contrary and without limiting any consent or approval right or requirement set forth in Section 5.15 Section 5.16,
Section 5.18 and Section 12.05 , the following matters shall require, and the Company shall not, and shall cause its Subsidiaries not to, directly or indirectly, do any of the following without first obtaining the affirmative approval in writing of the holder of a majority of the Common Shares that would be adversely impacted or prejudiced by such matter (excluding Yucaipa, or any of its Affiliates or Permitted Transferees):
(a) amending the organizational document, this Agreement or stockholders, operating or similar agreement of the Company or any of its Subsidiaries in a manner that materially and disproportionately adversely affects or prejudices a Shareholder or a group of Shareholders, taking into account the nature and extent of their respective interests, (as compared to Yucaipa or the other Shareholders) other than any amendment in connection with the issuance of Equity Securities in accordance with Section 4.03
(b) fundamentally changing the nature or scope of the business of the Company and its Subsidiaries as conducted on the date hereof;
(c) making any new or changing any existing tax election or taking any other action with respect to tax matters of the Company and its Subsidiaries that would reasonably be expected to have a materially and disproportionately adverse effect on such Shareholder (as compared to Yucaipa); or
(d) entering into any agreement or binding obligation with respect to, or otherwise committing to do, any of the foregoing.
Section 5.18 Disinterested and Independent Director Consent
In addition to any other consent or approvals required under this Agreement, the Company shall not, and shall cause its Subsidiaries not to, directly or indirectly, enter into, amend or modify the terms of, any Affiliate Transaction that involves Yucaipa or the MCR Investor or one of their respective Affiliates without first obtaining the affirmative approval in writing of a majority of the disinterested and independent directors on the Board (and, for the avoidance of doubt, any Director designated by the MCR Investor shall be deemed to be disinterested and independent with respect to any transactions involving Yucaipa or any of its Affiliates).
Section 5.19 Officers; Designation and Election of Officers; Duties . Subject to Section 5.15 and Section 5.16 , the Board may, from time to time, employ and retain Persons as may be necessary or appropriate for the conduct of the Company's business (subject to the supervision and control of the Board), including employees, agents and other Persons (any of whom may be a Shareholder or Representative) who may be designated as officers of the Company, with titles including “chief executive officer,” “chief financial officer,” “president,” “vice president,” “treasurer,” “secretary,” “general counsel,” “chief compliance officer” and “ director,” as and to the extent authorized by the Board (each, an “ Officer ” and collectively, the “ Officers ”); provided, that the Board (a) shall elect a Chairman of the Board (the “ Chairman ”), who shall hold his or her office for such term and shall exercise such powers and perform such duties as shall be determined from time to time by the Board, who shall, initially be the Initial Chairman. Any number of offices may be held by the same Person. Subject to Section 5.15 , any Officers so designated shall have such authority and perform such duties as the Board may, from time to time, delegate to them. The Board may assign titles to particular Officers. Subject to Section 5.15 Section 5.16 and Section 5.20 , each Officer shall hold office until his successor shall be duly designated or until his or her death or until he or she shall resign or shall have been removed in the manner hereinafter provided.
Section 5.20 Removal of Officers; Vacancies . Any Officer may resign as such at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or if no time is specified, at the time of its receipt by the Board. The acceptance by the Board of a resignation of any Officer shall not be necessary to make such resignation effective, unless otherwise specified in such resignation. Subject to Section 5.16(e) , any Officer may be removed as such, either with or without cause, at any time by the Board or any authorized committee thereof. Vacancies may be filled by approval of the Board or any authorized committee thereof. Designation of any Person as an Officer by the Board shall not in and of itself vest in such Person any contractual or employment rights with respect to the Company.
Section 5.21 Vice Chair . The Board shall elect one (1) Vice Chair of the Board, who shall, initially be Tyler Morse (the “ Vice Chair ”). The Board shall from time to time determine the authority, scope, reporting, management-engagement protocols, and responsibilities of a Vice Chair with respect to special projects or such other initiatives from time to time designated by the Board (with the agreement of the Vice Chair) to be led by the Vice Chair. Prior to the Director Transfer Date, except as otherwise provided in Section 5.01(c) Section 5.01(d) Section 5.03 or Section 5.08(a) , the Vice Chair shall not be removed, terminated or otherwise replaced.
Section 5.22 Reliance by Third Parties . Persons dealing with the Company are entitled to rely conclusively upon the power and authority of the Board or the Officers in taking any action in the name of the Company without inquiry into the provisions of this Agreement or compliance with it, regardless of whether that action actually is taken in accordance with the provisions of this Agreement.
ARTICLE 6
Indemnification and Exculpation
Section 6.01 Indemnity
(a) To the fullest extent permitted by Applicable Law, the Company will, and will cause each of its Subsidiaries to, indemnify, exonerate and hold the Shareholders and each of their respective partners, shareholders, members, Affiliates (excluding the Company and its Subsidiaries), directors, officers, fiduciaries, managers, controlling Persons, employees and agents and each of the partners, shareholders, members, Affiliates (excluding the Company and its Subsidiaries), directors, officers, fiduciaries, managers, controlling Persons, employees and agents of each of the foregoing (collectively, the “ Indemnitees ”) free and harmless from and against any and all actions, causes of action, suits, claims, proceedings, liabilities, losses, damages and costs and out-of-pocket expenses in connection therewith (including reasonable attorneys' fees and expenses) incurred by the Indemnitees or any of them before or after the date of this Agreement (collectively, the “ Indemnified Liabilities ”), arising out of any third- party action, cause of action, suit, arbitration or claim arising, directly or indirectly, out of, or in any way relating to, (i) such Shareholder's or its Affiliates' ownership of Common Shares or such Shareholder's or its Affiliates' control of the Company or any of its Subsidiaries or their respective predecessors or successors (other than any such Indemnified Liabilities to the extent such Indemnified Liabilities arise out of any willful breach of this Agreement by such Indemnitee or its Affiliates or other related Persons) or (ii) the business, operations, properties, assets or other rights or liabilities of the Company or any of its Subsidiaries; provided however , that if and to the extent that the foregoing undertaking may be unavailable or unenforceable for any reason other than in accordance with its terms, the Company will, and will cause its Subsidiaries to, make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under Applicable Law. For the purposes of this Section 6.01 , none of the limitations set forth in the parenthetical to clause (i) above shall be deemed to apply absent a final non-appealable judgment of a court of competent jurisdiction to such effect, in which case to the extent any such limitation is so determined to apply to any Indemnitee as to any previously advanced indemnity payments made by the Company or any of its Subsidiaries, then such payments shall be promptly repaid by such Indemnitee to the Company and its Subsidiaries, as applicable. The rights of any Indemnitee to indemnification hereunder will be in addition to any other rights any such Person may have under any other agreement or instrument to which such Indemnitee is or becomes a party or is or otherwise becomes a beneficiary or under law or regulation or under the organizational documents of the Company or any of its Subsidiaries.
(b) The Company, will, and will cause its Subsidiaries to, jointly and severally, reimburse any Indemnitee for all reasonable costs and expenses (including reasonable attorneys' fees and expenses and any other litigation-related expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any action for which the Indemnitee would be entitled to indemnification under the terms of this Section 6.01 , or any action or proceeding arising therefrom, whether or not such Indemnitee is a party thereto. The Company or its Subsidiaries, in the defense of any action for which an Indemnitee would be entitled to indemnification under the terms of this Section 6.01 , may, without the consent of such Indemnitee, consent to entry of any judgment or enter into any settlement if and only if it (i) includes as a term thereof the giving by the claimant or plaintiff therein to such Indemnitee of an unconditional release from all liability with respect to such action, (ii) does not impose any limitations (equitable or otherwise) on such Indemnitee, and (iii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such Indemnitee, and provided that the only penalty imposed in connection with such settlement is a monetary payment that will be paid in full by the Company or its Subsidiaries.
(c) The Company acknowledges and agrees that the Company shall, and to the extent applicable shall cause its Subsidiaries to, be fully and primarily responsible for the payment to the Indemnitee in respect of Indemnified Liabilities in connection with any Jointly Indemnifiable Claim, pursuant to and in accordance with (as applicable) the terms of (i) Applicable Law, (ii) the organizational documents of the Company, (iii) this Agreement, (iv) any other agreement between the Company and the Indemnitee pursuant to which the Indemnitee is indemnified and/or (v) the laws of the jurisdiction of incorporation or organization of the Company ( clauses
(i) through (v) , collectively, the “ Indemnification Sources ”), irrespective of any right of recovery the Indemnitee may have from any Indemnitee-Related Entities. For the avoidance of doubt, the Company shall not be responsible for indemnifying the Indemnitee for any Indemnified Liabilities arising solely from the Indemnitee's service as a director, officer, employee, or agent of any Subsidiary, except to the extent that the Company has expressly agreed in writing to provide such indemnification. In all such cases, the relevant Subsidiary shall be fully and primarily responsible for any such indemnification obligations. Under no circumstance shall the Company or any controlled Subsidiary be entitled to any right of subrogation or contribution by the Indemnitee-Related Entities and no right of advancement or recovery the Indemnitee may have from the Indemnitee-Related Entities shall reduce or otherwise alter the rights of the Indemnitee or the obligations of the Company or any controlled Subsidiary under the Indemnification Sources. In the event that any of the Indemnitee-Related Entities shall make any payment to the Indemnitee in respect of indemnification with respect to any Jointly Indemnifiable Claim, (i) the Company shall, and to the extent applicable shall cause its controlled Subsidiaries to, reimburse the Indemnitee-Related Entity making such payment to the extent of such payment promptly upon written demand from such Indemnitee-Related Entity, (ii) to the extent not previously and fully reimbursed by the Company and/or any controlled Subsidiary pursuant to clause
(i) , the Indemnitee-Related Entity making such payment shall be subrogated to the extent of the outstanding balance of such payment to all of the rights of recovery of the Indemnitee against the Company and/or any controlled Subsidiary, as applicable, and (iii) the Indemnitee shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to enable the Indemnitee-Related Entities effectively to bring suit to enforce such rights.
(d) The Company and Shareholders agree that each of the Indemnitees and Indemnitee-Related Entities shall be third- party beneficiaries with respect to this Section 6.01 , entitled to enforce this Section 6.01 as though each such Indemnitee and Indemnitee-Related Entity were a party to this Agreement. The Company shall cause each of its Subsidiaries to perform the terms and obligations of this Section 6.01 as though each such Subsidiary were a party to this Agreement.
Section 6.02 Exculpation
(a) To the fullest extent permitted by Applicable Law, no Indemnitee shall be liable to the Company or its Subsidiaries or to any other Person that is a Party hereto or is otherwise bound hereby for (i) any act or failure to act with respect to or in connection with the Company Group or the Company Group's business or affairs (without prejudice to rights and remedies available for breaches of this Agreement or the Transaction Documents, in accordance with the terms of such agreement, if applicable), or (ii) any liability from any breach of such Person's duty of loyalty to the Company, except in the case of bad faith or willful misconduct.
(b) The Company shall also have the power to exculpate, to the same extent set forth in this Section 6.02 , employees of the Company or its Subsidiaries who are not Indemnitees and agents of the Company or its Subsidiaries.
Section 6.03 Waiver of Corporate Opportunity Except as otherwise provided in the second sentence of this Section 6.03 , (i) no Shareholder or any of its Affiliates or any of their respective representatives (even if such Person is also an officer or Director of the Company) shall have any duty to communicate or present an investment or business opportunity or prospective economic advantage to the Company in which the Company may, but for the provisions of this Section 6.03 , have an interest or expectancy (a “ Corporate Opportunity ”), and (b) no Shareholder or any of its Affiliates or any of their respective representatives (even if such Person is also an officer or Director of the Company) shall be deemed to have breached any fiduciary or other duty or obligation to the Company by reason of the fact that any such Person pursues or acquires a Corporate Opportunity for itself or its Affiliates or directs, sells, assigns or transfers such Corporate Opportunity to another Person or does not communicate information regarding such Corporate Opportunity to the Company. The Company renounces any interest in a Corporate Opportunity and any expectancy that a Corporate Opportunity will be offered to the Company; provided, however , that the Company does not renounce any interest or expectancy it may have in any Corporate Opportunity that is offered to an officer or Director of the Company whether or not such individual is also a Director or officer of a Shareholder, if such opportunity is expressly offered in writing solely to such Person in his or her capacity as an officer or Director of the Company.
Section 6.04 D&O Insurance . The Company shall at all times maintain directors' and officers' indemnity insurance coverage and the Certificate of Incorporation and Bylaws shall provide for mandatory indemnification and exculpation of the Directors and advancement of expenses to the Directors, in each case, to the fullest extent permitted under Applicable Law.
Section 6.05 Entry Into Force . The provisions of this Article 6 shall be applicable to any action, suit or proceeding commenced after the date of this Agreement against any Indemnitee arising from any act or omission of such Indemnitee acting in its capacity as such, whether occurring before or after the date of this Agreement. No amendment to or repeal of this Article 6 , or, to the fullest extent permitted by Applicable Law, any amendment of Applicable Law, shall have any effect on the rights provided under this Article 6 with respect to any act or omission occurring prior to such amendment or repeal.
Section 6.06 Transaction Documents . Nothing contained in this Article 6 is intended to relieve any Shareholder or any other Person from any liability or other obligation of such Person pursuant to any Transaction Document, to the extent such Shareholder is a party thereto, or to in any way impair the enforceability of any provision of such agreements against any party thereto.
ARTICLE 7
Accounting, Tax, Fiscal and Legal Matters
Section 7.01 Fiscal Year . The fiscal year of the Company shall end on December 31 of each year (the “ Fiscal Year ”).
Section 7.02 Books of Account and Other Information . The Company shall prepare and maintain, at its principal place of business, separate books of account for the Company that shall show a true and accurate record of all costs and expenses incurred, all charges made, all credits made and received and all income derived in connection with the operation of the Company's business in accordance with GAAP consistently applied, and, to the extent inconsistent therewith, in accordance with this Agreement. All questions of accounting shall be determined by the Board or a committee or officer authorized by the Board to make such determination.
Section 7.03 Auditors . The Company Auditors shall be such firm of certified independent public accountants as shall be selected by the Board in its reasonable discretion and in accordance with the provisions of this Agreement.
Section 7.04 Certain Tax Matters
(a) The Company shall arrange for the preparation and timely filing of all tax returns required to be filed by the Company. Each Shareholder shall furnish to the Company all pertinent information and documentation in its possession relating to the Company's operations or as may be necessary to enable any tax return required to be filed by or with respect to the Company and any Subsidiary thereof to be timely prepared and filed.
(b) The Shareholders agree that (i) the Company is intended to be classified as an association taxable as a corporation for U.S. federal income tax purposes, (ii) the Board shall take all actions necessary to cause the Company to be so classified, and (iii) no Shareholder or Affiliate thereof take any action inconsistent with such treatment.
(c) The Company shall as promptly as practicable furnish to any Shareholder information reasonably requested by such Shareholder or any Affiliate thereof to enable such Shareholder or its direct or indirect equity owners to comply with applicable tax reporting requirements with respect to Shares held by such Shareholder, including such information as may be reasonably requested by such Shareholder to complete U.S. federal, state or local or non-U.S. income tax returns. Reasonable out-of-pocket costs incurred by the Company in connection with providing such information shall be borne, and promptly reimbursed, by the Shareholder requesting such information. The Company will use commercially reasonable efforts to provide any tax-related information that is required to be provided to the Shareholder by the Company or any of its Subsidiaries in respect of a Taxable Year within ninety (90) calendar days following the end of such Taxable Year.
(d) The Shareholders shall be entitled to receive from the Company upon reasonable request, to the extent it is able to do so, a certification that no Shares constitute a “United States real property interest,” in accordance with Treasury Regulations Section 1.897-2(h)(1). Reasonable out-of-pocket costs incurred by the Company in connection with providing such certification, including any costs incurred in making any determinations with respect to the status of the Shares as a “United States real property interest,” in accordance with Treasury Regulations Section 1.897-2(h)(1), shall be borne, and promptly reimbursed, by the Shareholder requesting such certification.
(e) Notwithstanding anything to the contrary in this Agreement, any Shareholder that intends to cause any Transfer of Company Securities that is otherwise permitted under this Agreement shall provide notice to the Board as soon as reasonably possible, with such notice containing sufficient detail and information as requested by the Board to allow the Board to (i) determine whether such Transfer would cause an “ownership change” pursuant to Section 382 of the Code (or any similar Applicable Law) with respect to the Company and, (ii) if such Transfer would cause an “ownership change” pursuant to Section 382 of the Code (or any similar Applicable Law) giving rise to a materially adverse impact on the Company's projected tax expense, consider in good faith what procedures, if any, may be warranted to implement to preserve the Company's ability to utilize its net operating losses and other tax attributes; provided that such procedures shall not prevent or in any way inhibit or limit the ability of such Shareholder to Transfer its Company Securities.
ARTICLE 8
Dividends and Distributions
Section 8.01 Dividends . Subject to the terms of this Agreement, the Board may (but shall not be obligated to) declare and authorize dividends or other distributions to the Shareholders at any time or from time to time, and in amounts as determined by the Board in its sole and absolute discretion to be appropriate. All dividends or other distributions shall, subject to any rights contained in any certificate of designations for any class or series of preferred stock, be made to the Shareholders on a pro rata basis in accordance with their Shareholder Percentages. The Company shall (at its own expense) determine the portion of any such distribution that is characterized as a dividend for U.S. federal income tax purposes, within the meaning of Section 301(c)(1) of the Code, and shall inform the Shareholders of the same.
Section 8.02 Dividends and Distributions in Cash, Stock or in Kind . Dividends or distributions may be declared and paid in cash, in shares of stock or in property, as determined by the Board, in its sole discretion, subject to the terms of this Agreement and any rights of holders of any class or series of preferred stock as set forth in the applicable certificate of designations.
Section 8.03 Limitations on Dividends and Distributions . Notwithstanding anything in this Agreement to the contrary, no dividend or distribution shall be declared or paid if such action would be in violation of Applicable Law or any restrictions set forth in the Company's Certificate of Incorporation, bylaws, or any certificate of designations for any class or series of preferred stock.
ARTICLE 9
Transfer Restrictions and Additional Shareholders
Section 9.01 Restrictions on Transfers . No Shareholder may, directly or indirectly, Transfer or permit a Transfer of (whether by merger, operation of law or otherwise) any Company Securities, except for (i) either (x) direct Transfers by a Shareholder to a Permitted Transferee or (y) direct or indirect Transfers in a Shareholder so long as such Transfer does not result in a change in control of the Shareholder, in each case pursuant to and in accordance with Section 9.02(a) (ii) Transfers from and after December 31, 2026 pursuant to and in accordance with Section 9.02(b) (including any Transfers made pursuant to and in accordance with Section 9.08 in connection therewith); (iii) Transfers to a ROFO Holder pursuant to and in accordance with Section 9.04 ; (iv) Transfers to the Non-ROFO Selling Shareholder pursuant to and in accordance with Section 9.04(c) ; (v) Transfers pursuant to and in accordance with Section 9.09 and (vi) Transfers that have been approved in writing by the Board by a two-thirds majority; provided that no Shareholder may Transfer any Company Securities pursuant to clauses
(i) , or (ii) above to a competitor of the Company, as determined by the Board in good faith, without the prior written consent of the Board by a two-thirds majority.
Section 9.02 Permitted Transfers
(a) Any Shareholder may at any time, without the consent of the Board or any other Shareholder, either (x) Transfer any or all of its Shares, directly or indirectly, to one or more of its Permitted Transferees, (y) permit a direct or indirect Transfer in such Shareholder so long as such Transfer does not result in a change in control of the Shareholder, and (z) with respect to MCR Investor, permit a direct or indirect Transfer in MCR Investor so long as such Transfer does not result in MCR Parent ceasing to Control, directly or indirectly, MCR Investor; provided that, with respect to a direct Transfer by a Shareholder under clause (x), (i) the transferring Shareholder gives, prior to such Transfer becoming effective, at least ten (10) Business Days' advance written notice to the Board of such intention to make such a Transfer, which written notice shall state the name and address of each Permitted Transferee to whom such Transfer is proposed, the relationship of such Permitted Transferee to such transferring Shareholder and the number of Shares proposed to be transferred to such Permitted Transferee, (ii) such Permitted Transferee shall have agreed in writing to be entitled to and bound by all the rights and obligations, and subject to, the terms and conditions of this Agreement in accordance with Section 9.03(a) , (iii) the Transfer to such Permitted Transferee is in compliance with Applicable Law and applicable contractual obligations, (iv) such Transfer has been made subject to the transfer-back requirements pursuant to Section 9.02(d) and (v) the transferring Shareholder remains jointly and severally liable with the relevant Permitted Transferee vis-à-vis the other Parties for any breach by such Permitted Transferee of any provision of this Agreement.
(b) From and after December 31, 2026, without the consent of the Board or any other Shareholder, any Shareholder may, subject to Section 9.01 Section 9.04 and Section 9.08 (if applicable), Transfer, directly or indirectly, in any one transaction or series of transactions, all or any portion of its Shares to any Person.
(c) On or prior to June 30, 2028, Yucaipa shall give each Shareholder written notice of whether, in Yucaipa's reasonable discretion, the Consolidated Adjusted EBITDA Threshold is reasonably expected to be met.
(d) For the avoidance of doubt, a Transfer to a Permitted Transferee shall not relieve the transferring Shareholder of its obligations to the Company. Each Shareholder agrees that if, after a Transfer to a Permitted Transferee in accordance with Section 9.02(a) , the Permitted Transferee ceases to be a Permitted Transferee of such Shareholder, except as otherwise required by Applicable Law, such Permitted Transferee shall immediately transfer all of its Transferred Shares to such Shareholder or another Permitted Transferee of such Shareholder.
(e) Except as provided herein, (i) a transferring Shareholder will bear its own costs and expenses in connection with the Transfer of such Shareholder's Shares, (ii) a transferee of Shares will bear its own costs and expenses in connection with the Transfer of such Shares and (iii) the Company will bear any ordinary course expenses it or its Subsidiaries may incur in connection with effecting and implementing any Transfer of any Shares. Without limitation of the foregoing, any transfer or similar taxes arising as a result of the Transfer of a Shareholder's Shares shall be paid by such transferring Shareholder (as applicable).
Section 9.03 Additional Shareholders
(a) Each Person who receives Shares as a result of a direct Transfer in accordance with, and as permitted by, the terms of this Agreement and who is not already a Shareholder, shall have executed and delivered to the Company, as a condition precedent to such person's acquisition of the relevant Shares, a joinder in the form reasonably acceptable to the Board (a “ Joinder ”). Upon execution of such Joinder, (i) such Person agrees to be bound by all the terms and conditions of this Agreement and shall be entitled to all rights of a Shareholder hereunder; (ii) in the case of a Transfer to a Permitted Transferee, such Permitted Transferee shall be subject to all of the obligations of the transferring Shareholder under this Agreement with respect to such Shares; and (iii) in the case of a Transfer to a Permitted Transferee, the transferring Shareholder shall have the right, but not the obligation, to assign (and may do so without the consent of any other Shareholder, the Company or any other Person) such Permitted Transferee all of its rights under this Agreement, as of the date of such Transfer. The Company shall be obliged to execute and deliver to such Person who has signed a Joinder a countersigned copy thereof, if the Transfer to such person is specifically required or permitted by this Agreement, and such person shall be entitled to all rights of a Shareholder hereunder.
(b) Each Person who is issued new Shares in accordance with, and as permitted by, the terms of this Agreement who is not already a Shareholder shall have executed and delivered to the Company, as a condition precedent to such person's acquisition of the relevant Shares, a Joinder, pursuant to which such subscriber confirms that, with respect to the Shares it subscribes to or it receives, as applicable, it shall be deemed a Shareholder, and agrees to be bound by all the terms and conditions of this Agreement, in which case, the Company shall be obliged to execute and deliver to such Person who has signed a Joinder a countersigned copy thereof, and such person shall be entitled to all rights of a Shareholder hereunder.
(c) In the event of a Transfer of any Shares by a Shareholder in accordance with this Article 9 to any Person (other than a Permitted Transferee), such Shareholder shall not be permitted to assign the specific rights granted to it hereunder (and not to all Shareholders) without the prior written consent of the Board (not to be unreasonably withheld, conditioned or delayed).
(d) Upon a direct Transfer of Company Securities as permitted in accordance with this Agreement, the transferring Shareholder shall notify the Company so that such Transfer may be registered in the Company's books and records.
Section 9.04 Right of First Offer
(a) ROFO over Minority Offering Shareholders.
(a) If any Shareholder other than Yucaipa, the MCR Investor or any of their respective Permitted Transferees (“ Minority Offering Shareholder ”) desires to Transfer (or cause to be Transferred) (whether by merger, operation of law or otherwise) all or part of the Minority Offering Shareholder's Company Securities pursuant to Section 9.02(b) , other than (1) a Transfer to a Permitted Transferee in accordance with Section 9.02(a) , and (2) a Transfer in accordance with Section 9.09 , then the Minority Offering Shareholder will notify the Company, in writing (the “ Minority ROFO Sale Notice ”) that the Minority Offering Shareholder desires to Transfer all or any portion of its Company Securities, designating the specific number of Company Securities (the “ Minority ROFO Shares ”) that the Minority Offering Shareholder desires to Transfer.
(b) The Company shall within two (2) Business Days of its receipt of the Minority ROFO Sale Notice deliver the Minority ROFO Sale Notice to Yucaipa and the MCR Investor (collectively, the “ Minority ROFO Holders ”). For a period of sixty (60) Business Days (“ Minority ROFO Election Period ”) after receipt of the Minority ROFO Sale Notice, each Minority ROFO Holder shall have the right, but not the obligation, to purchase all (and only all) of the Minority ROFO Shares, which right may be exercised jointly with the other Minority ROFO Holder, by delivering an irrevocable written notice (the “ Minority ROFO Offer ”) stating that the Minority ROFO Holder(s) wish to purchase all (and only all) of the Minority ROFO Shares. Any Minority ROFO Offer must include (1) the aggregate cash purchase price per Share (the “ Minority ROFO Offer Price ”) for such Minority ROFO Shares, which for the avoidance of doubt, shall be the same per share price for each Minority ROFO Share, and (2) the other material terms and conditions of such proposed Transfer.
(b) ROFO over Yucaipa.
(a) If Yucaipa or any of its respective Permitted Transferees (“ Yucaipa Offering Shareholder ”) desires to Transfer (or cause to be Transferred) (whether by merger, operation of law or otherwise) all of the Yucaipa Offering Shareholder's Shares pursuant to Section 9.09(a)(ii) , then the Yucaipa Offering Shareholder will notify the Company, in writing (the “ Yucaipa ROFO Sale Notice ”) that the Yucaipa Offering Shareholder desires to Transfer all of its Shares (the “ Yucaipa ROFO Shares ”).
(b) The Company shall within two (2) Business Days of its receipt of the Yucaipa ROFO Sale Notice deliver the Yucaipa ROFO Sale Notice to the MCR Investor (the “ Yucaipa ROFO Holder ”). For a period of sixty (60) Business Days (“ Yucaipa ROFO Election Period ”) after receipt of the Yucaipa ROFO Sale Notice, the Yucaipa ROFO Holder shall have the right, but not the obligation, to purchase all (and only all) of the Yucaipa ROFO Shares and the Shares held by the other Shareholders (“ Other ROFO Shares ”, and an “ Other ROFO Offering Shareholder ”) by delivering an irrevocable written notice (the “ Yucaipa ROFO Offer ”) stating that the Yucaipa ROFO Holder wishes to purchase all (and only all) of the Yucaipa ROFO Shares and Other ROFO Shares. Any Yucaipa ROFO Offer must include (1) the aggregate cash purchase price per Share (the “ Yucaipa ROFO Offer Price ”) for such Yucaipa ROFO Shares and Other ROFO Shares and (2) the other material terms and conditions of such proposed Transfer.
(c) ROFO over Drag-Along Sellers.
(a) If the conditions to a Drag-Along Right are satisfied, prior to triggering a Drag-Along Sale under Section 9.09(a)(i) , a Shareholder (the “ DA ROFO Offering Shareholder ”) will notify the Company, in writing (the “ DA ROFO Sale Notice ”) that the DA ROFO Offering Shareholder desires to Transfer all of its Shares (the “ DA ROFO Shares ”).
(b) The Company shall within two (2) Business Days of its receipt of the DA ROFO Sale Notice deliver the DA ROFO Sale Notice to Yucaipa. For a period of sixty (60) Business Days (“ DA ROFO Election Period ”) after receipt of the DA ROFO Sale Notice, Yucaipa shall have the right, but not the obligation, to purchase all (and only all) of the DA ROFO Shares by delivering an irrevocable written notice (the “ DA ROFO Offer ”) stating that Yucaipa wishes to purchase all (and only all) of the DA ROFO Shares. Any DA ROFO Offer must include (1) the aggregate cash purchase price per Share (the “ DA ROFO Offer Price ”) for such DA ROFO Shares and Other ROFO Shares and (2) the other material terms and conditions of such proposed Transfer.
(d) The Offering Shareholder will have fifteen (15) Business Days following the ROFO Election Period (“ ROFO Acceptance Period ”) to accept in writing ( “ ROFO Acceptance Notice ”) any ROFO Offer made by the ROFO Holder(s); provided , that the Offering Shareholder shall not be required to accept any such ROFO Offer.
(e) In the case of clause (a) above, if more than one ROFO Holder wishes to exercise their right to purchase the ROFO Shares, they shall notify the Company and the Offering Shareholder within the ROFO Election Period . The ROFO Shares shall be allocated between the ROFO Holders pro rata in accordance with their respective Shareholder Percentages (excluding the Offering Shareholder) as of the date of the ROFO Sale Notice, unless otherwise in writing by such ROFO Holders. If the ROFO Holders do not agree on the terms of a joint offer, or on allocation within ten (10) Business Days following the ROFO Election Period, the ROFO Shares shall be allocated to the ROFO Holder offering the higher price.
(f) If the Offering Shareholder timely delivers a ROFO Acceptance Notice, then each of the Offering Shareholder and ROFO Holder(s) shall (and, as applicable, shall require its Affiliates to) consummate the purchase and sale of the ROFO Shares as to which the Offering Shareholder has delivered the ROFO Acceptance Notice on the terms set forth in the ROFO Offer within (i) in the case of Section 9.09(a) and Section 9.09(b) , thirty (30) calendar days of the end of the ROFO Acceptance Period, and (ii) in the case of Section 9.09(c) , one hundred eighty (180) calendar days of the end of the ROFO Acceptance Period; provided , that, if any Governmental Approvals are required in connection with such transaction, such time period shall be extended until the expiration of five (5) Business Days following the date on which all Governmental Approvals required with respect to such proposed transaction are obtained (including the expiration or termination of any applicable waiting periods under Applicable Law) but (i) in the case of Section 9.09(a) and Section 9.09(b) in no event will such period be extended for more than an additional one hundred eighty (180) calendar days, and (ii) in the case of Section 9.09(c) , in no event later than two hundred forty (240) calendar days following the end of the ROFO Acceptance Period, (it being understood that, if any such required Governmental Approvals are not obtained within such periods, the applicable purchasing ROFO Holder and the Offering Shareholder shall not be obligated to proceed with the proposed transaction and the Offering Shareholder may include the Shares which were to have been sold to the applicable purchasing ROFO Holder in any transaction effected pursuant to Section 9.04(g) provided however , that the Offering Shareholder may not proceed with any transaction effected pursuant to Section 9.04(g) if the failure to obtain Governmental Approvals was due to such Offering Shareholder's failure to use commercially reasonable efforts to obtain such required Governmental Approvals. The parties to any such transaction shall use their respective commercially reasonable efforts to obtain, at their own cost and expense, any such required Governmental Approvals.
(g) If (i) the Offering Shareholder delivers a notice in writing that it does not intend to accept any ROFO Offer or fails to deliver ROFO Acceptance Notices with respect to all of the ROFO Shares to be sold pursuant to the ROFO Offer during the time period set forth in Section 9.04(b) , (ii) no ROFO Offers are provided to the Offering Shareholder during the ROFO Election Period or (iii) the Offering Shareholder timely delivers a ROFO Acceptance Notice and the proposed transaction contemplated by the ROFO Offer is not consummated solely as a result of a failure to receive all required Governmental Approvals within the time period referred to in Section 9.04(f)
(as extended if applicable in accordance with
Section 9.04(f)
) (any of the events in the foregoing
clauses
(i)
to
(iii)
, a “
ROFO Sale Trigger ”) , then, (i) in the case of Section 9.04(a) and Section 9.04(b), subject to the last proviso in Section 9.04(f) , the Offering Shareholder may enter into a binding agreement to Transfer or cause to be Transferred all (but not less than all) of the Shares set forth in the ROFO Sale Notice subject to the last proviso in Section 9.04(f) , at a price no less than one hundred percent (100%) of the price proposed in the ROFO Offer, if applicable, and on other terms and conditions that are no more favorable to the unaffiliated third- party acquirer than the terms and conditions specified in the ROFO Offer (the “ ROFO Offer Terms ”), if applicable; provided , that, such sale is bona fide and is entered within one hundred and twenty (120) calendar days of a ROFO Sale Trigger; provided, further, that such Transfer shall be consummated within two hundred and thirty five (235) calendar days after a ROFO Sale Trigger, and (ii) in the case of Section 9.04(c), the DA ROFO Offering Shareholder may, at its or their option, trigger a Drag-Along Sale pursuant to Section 9.09(a) (i). If, however, the Offering Shareholder (or, as applicable, its Affiliate) fails to complete or cause to be completed the proposed Transfer to an unaffiliated third- party acquirer within such time periods, then any proposed Transfer shall again become subject to the right of first offer pursuant to this Section 9.04
(h) Notwithstanding anything to the contrary in this Section 9.04 , no Offering Shareholder may deliver more than one (1) ROFO Sale Notices or otherwise trigger a ROFO Sale Trigger pursuant to Section 9.04(a) in any rolling twelve (12) month period, and any attempt to do so in excess of such limit shall be null and void and of no force or effect; provided that, the limitation set forth in this Section 9.04(h) shall not apply in the event that the Offering Shareholder elects to re-initiate the right of first offer pursuant to the last sentence of Section 9.04(g) as a result of the third-party offer not complying with the ROFO Offer Terms.
Section 9.05 Termination of Shareholder Status . Any Shareholder that directly Transfers all of its, and owns no, Shares shall immediately cease to be a Shareholder and shall no longer be a Party to this Agreement (in its capacity as a Shareholder), and Exhibit A shall be updated to eliminate such Person; provided however , that such Shareholder (a) shall not thereby be relieved of its liability for breach of this Agreement prior to such time or from any obligations under this Agreement; (b) shall retain any rights with respect to a breach of this Agreement by any other Person prior to such time; (c) shall retain any rights as an Indemnitee under Article 6 with respect to conduct occurring prior to such Transfer; and (d) shall not thereby be relieved of any of i ts obligations under Article 9
Section 9.06 Void Transfers . To the greatest extent permitted by Applicable Law, any Transfer by any Shareholder of any Shares or other interest in the Company (including any Transfer of any Person which, directly or indirectly, owns Shares) in contravention of this Agreement shall be ineffective and null and void ab initio and shall not bind or be recognized by the Company or any other Person. In the event of any Transfer in contravention of this Agreement, to the greatest extent permitted by Applicable Law, the purported transferee shall have no right to any profits, losses or distributions of the Company or any other rights of a Shareholder.
Section 9.07 [Reserved]
Section 9.08 Tag-Along Right
(a) Subject to Section 9.10 , if, (i) Yucaipa proposes to Transfer (whether by merger, operation of law or otherwise) Shares (the “ Yucaipa Tag-Along Seller ” and the Transfer of such Shares, the “ Yucaipa Tag-Along Sale ”), (ii) the MCR Investor proposes to Transfer (whether by merger, operation of law or otherwise) Shares (the “ MCR Investor Tag-Along Seller ” and the Transfer of such Shares, the “ MCR Investor Tag-Along Sale ”) or (iii) Yucaipa proposes to purchase Shares of a ROFO Selling Shareholder pursuant to Section 9.04(c) (the “ ROFO Tag-Along Seller ” and the purchase of such Shares, the “ ROFO Tag-Along Sale ”), other than in each of clauses
(i) and (ii) , (x) a Transfer to a Permitted Transferee in accordance with Section 9.02(a) or (y) a Transfer in accordance with Section 9.09 , and in the case of clause (ii), a Transfer in accordance with Section 9.04(c) , the Tag-Along Seller shall provide the other Shareholders (the “ Tagging Shareho
lders ”) written notice of the terms and conditions of such proposed Transfer (the “ Tag-Along Notice ”) and offer the Tagging Shareholders the opportunity to participate in such Transfer in accordance with this Section 9.08
provided
, that, if the Consolidated Adjusted EBITDA Threshold has not been met as of the Trigger Date, this
Section 9.08 shall not apply to any proposed Transfer by the MCR Investor (whether by merger, operation of law or otherwise) pursuant to clause (ii) above during the six (6) month period immediately following the Trigger Date
(b) The Tag-Along Notice shall identify the number of Shares proposed to be sold by the Tag-Along Seller (the “ Tag-Along Offer ”), the consideration for which the Transfer is proposed to be made, and all other material terms and conditions of the Tag-Along Offer, including the form of the proposed agreement, if any.
(c) The Tagging Shareholders shall have the right (a “ Tag-Along Right ”), exercisable by written notice (a “ Tag-Along Response Notice ”) given to the Tag-Along Seller within twenty (20) Business Days after its receipt of the Tag-Along Notice (the “ Tag-Along Notice Period ”), to request that the Tag-Along Seller include in the proposed Tag-Along Sale up to a number of Shares representing such Tagging Shareholders' Tag-Along Portion; provided , that the Tagging Shareholders shall be entitled to include in the Tag-Along Sale no more than its Tag-Along Portion of Shares, and the Tag-Along Seller shall be entitled to include the number of Shares proposed to be Transferred by the Tag-Along Seller as set forth in the Tag-Along Notice (reduced, to the extent necessary, so that the Tagging Shareholders shall be able to include its Tag-Along Portion). Each Tag-Along Response Notice shall include wire transfer or other instructions for payment of any consideration for the Shares being transferred in such Tag-Along Sale. If at the termination of the Tag-Along Notice Period, any Tagging Shareholder shall not have elected to participate in the Tag-Along Sale, such Tagging Shareholder shall be deemed to have waived its rights under Section 9.08(a) with respect to the Transfer of its Shares pursuant to such Tag-Along Sale.
(d) If at the end of a one hundred twenty (120) calendar day period after delivery of a Tag-Along Notice (which one hundred twenty (120) calendar day period shall be extended if any of the transactions contemplated by the Tag-Along Offer are subject to Governmental Approvals until the expiration of five (5) Business Days after all such Governmental Approvals have been received, but in no event later than one hundred eighty (180) calendar days following receipt of the Tag-Along Notice by the Tag-Along Seller), the Tag-Along Seller has not completed the Transfer of all Shares proposed to be sold by the Tag-Along Seller and the Tagging Shareholders on substantially the same terms and conditions set forth in the Tag-Along Notice, all the restrictions on Transfer contained in this Agreement or otherwise applicable at such time with respect to such Shares shall continue in effect.
(e) Promptly after the consummation of the Tag-Along Sale, the Tag-Along Seller shall (i) notify the Tagging Shareholders thereof, (ii) if not remitted directly to the Tagging Shareholders, remit to the Tagging Shareholders the total consideration for the Shares of the Tagging Shareholders that were Transferred pursuant thereto, less the Tagging Shareholders' pro rata share of any escrows, holdbacks or adjustments in purchase price and any transaction expenses as determined in accordance with Section 9.10 , with the cash portion of the purchase price paid by wire transfer of immediately available funds in accordance with the wire transfer instructions in the applicable Tag-Along Response Notice, and (iii) furnish such other evidence of the completion and the date of completion of such transfer and the terms thereof as may be reasonably requested by a Tagging Shareholder. The Tag-Along Seller shall promptly remit to the Tagging Shareholders, if not remitted directly to the Tagging Shareholders, any additional consideration payable upon the release of any escrows, holdbacks or adjustments in purchase price.
(f) Notwithstanding anything contained in this Section 9.08 , there shall be no liability on the part of the Tag-Along Seller to the Tagging Shareholders or any other Person if the Transfer of Shares pursuant to this Section 9.08 is not consummated for whatever reason, except to the extent the Tag-Along Seller or the Company has breached any provision of this Agreement or the provisions of the definitive acquisition agreement in connection with the Tag-Along Sale. Whether to effect a Transfer of Shares pursuant to this Section 9.08 by the Tag-Along Seller is in the sole and absolute discretion of the Tag-Along Seller.
Section 9.09 Drag-Along Right
(a) Subject to Section 9.10 , (i) from and after the Trigger Date, and subject to the Consolidated Adjusted EBITDA Threshold having been met, either (x) the MCR Investor or (y) any other Shareholder or group of Shareholders holding greater than ten percent (10%) of the issued and outstanding Shares, may at its or their option, (ii) on or prior to the Trigger Date, and subject to Section 9.04(b) , and the MCR Investor receiving at least a 1.75x MOIC with respect to the sale of its Shares in any such Drag-Along Sale (as defined below), Yucaipa may at its option, or (iii) from and after the Trigger Date, Yucaipa may at its option (each, a “ Drag-Along Right ”), at any time elect to consummate, or to cause the Company to consummate, a transaction or a series of related transactions that constitutes or would constitute a Change of Control of the Company (a “ Drag-Along Sale ” and the Shareholders initiating such Drag-Along Sale, the “ Drag-Along Seller ” and the other Shareholders of the Company, the “ Non-Drag-Along Seller ”) and require each other Shareholder to, subject to the terms hereof: Transfer its Shares on the same terms and conditions applicable to, and for the same type of consideration payable to, the Drag-Along Seller, except as otherwise provided in Section 9.09(c) . Notwithstanding the foregoing, solely in the case of clause (i) above, if a DA ROFO Offer is submitted in accordance with Section 9.04(c) , the Drag-Along Right may only be triggered if the aggregate consideration for the Company set forth in the Drag-Along Sale Notice is greater than the DA ROFO Offer Price of such DA ROFO Offer, in each case, based on an implied equity value for 100% of the Shares of the Company.
(b) If the Drag-Along Seller elects to exercise its Drag-Along Rights, the Drag-Along Seller shall provide written notice of such Drag-Along Sale to the other Shareholders (a “ Drag-Along Sale Notice ”) not later than twenty (20) Business Days prior to the proposed Drag-Along Sale. The Drag-Along Sale Notice shall identify the proposed purchaser in the Drag-Along Sale, confirmation that the proposed purchaser has been informed of the Shareholders' rights pursuant to this Section 9.09 , the number of Shares subject to the Drag-Along Sale, the consideration for which a Transfer is proposed to be made and all other material terms and conditions of the Drag-Along Sale.
(c)
Any Drag-Along Sale must be for 100% of the Equity Securities of the Company and the consideration for such Drag-Along Sale must be solely of cash or freely marketable
securities. Notwithstanding the foregoing, in such transaction, Yucaipa and its Permitted Transferees may receive other property or
securities so long as all other Shareholders receive cash and/or freely marketable
securities having a reasonably equivalent value, with any determination of such value made by a committee of the Board comprised solely of disinterested and independent Directors (including in the case of a Drag-Along Sale pursuant to Section 9.09(a)(ii) or (iii) one or more MCR Directors if at such time the MCR Investor shall be entitled to designate one or more MCR Directors ) being final, binding, and not subject to
dispute by any Shareholder.
(d) The Drag-Along Seller shall have a period of one hundred eighty (180) calendar days from the date of delivery of the Drag-Along Sale Notice to consummate the Drag-Along Sale on the terms and conditions set forth in such Drag-Along Sale Notice; provided , that, if such Drag-Along Sale is subject to regulatory approval, such one hundred eighty (180) calendar day period shall be extended until the expiration of five (5) Business Days after all such approvals have been received, but in no event later than two hundred forty (240) calendar days following delivery of the Drag-Along Sale Notice by the Drag-Along Seller. If the Drag-Along Sale shall not have been consummated during such period, the Drag-Along Seller shall return to each of the Non-Drag-Along Seller any documents in the possession of the Drag-Along Seller executed by the Non-Drag-Along Seller in connection with the proposed Drag-Along Sale, and all the restrictions on Transfer contained in this Agreement or otherwise applicable at such time with respect to such Shares owned by the Non-Drag-Along Seller shall again be in effect.
(e) Promptly after the consummation of the Drag-Along Sale pursuant to this Section 9.09 , the Drag-Along Seller shall (i) notify the Non-Drag-Along Seller thereof, (ii) if not remitted directly to the Non-Drag-Along Seller, remit to the Non-Drag-Along Seller the total consideration for the Shares of the Non-Drag-Along Seller Transferred pursuant thereto less the Non-Drag-Along Seller's pro rata share of any escrows, holdbacks or adjustments in purchase price and all transaction expenses of the Company and the Non-Drag-Along Seller as determined in accordance with Section 9.10 , with the cash portion of the purchase price paid by wire transfer of immediately available funds in accordance with the wire transfer instructions provided by the Non-Drag-Along Seller, and (iii) furnish such other evidence of the completion and the date of completion of such transfer and the terms thereof as may be reasonably requested by the Non-Drag-Along Seller. If not remitted directly to the Non-Drag-Along Seller, the Drag-Along Seller shall promptly remit to the Non-Drag-Along Seller any additional consideration payable upon the release of any escrows, holdbacks or adjustments in purchase price.
(f) Notwithstanding anything contained in this Section 9.09 , there shall be no liability on the part of the Drag-Along Seller to the Non-Drag-Along Seller (other than the obligation to return the applicable instruments representing Shares received by the Drag-Along Seller) or any other Person if the Transfer of Shares pursuant to this Section 9.09 is not consummated for whatever reason, regardless of whether the Drag-Along Seller has delivered a Drag-Along Sale Notice, except to the extent the Drag-Along Seller or the Company has breached any provision of this Agreement or the provisions of the definitive acquisition agreement in connection with the Drag-Along Sale.
(g)
In the event a Drag-Along Seller seeks to commence a sale process in connection with a potential Drag-Along Sale pursuant to Section 9.09(a)(i) , such sale process shall be administered by the Board. The Board shall reasonably consult with the Drag-Along Seller and consider in good faith the views of the Drag-Along Seller in connection with material decisions and communications related to the Drag-Along Sale, including (i) identification and solicitation of prospective purchasers (including securing the services of an investment bank and/or other professional advisors to assist in procuring such purchasers), (ii) preparation of preliminary marketing and auction materials, and (iii) negotiation and execution of transaction documentation. The Board shall use its reasonable best efforts to provide the Drag-Along Seller with a reasonable opportunity to attend material meetings and calls related to the Drag-Along Sale and the Board will use its reasonable best efforts to provide reasonable advanced notice of the same The Board shall use reasonable best efforts to keep the Drag-Along Seller reasonably informed on a reasonably current basis of material developments in connection with such Drag-Along Sale.
(h)
In the case of Section 9.09(a)(ii) and (iii) , the Drag- Along Seller shall reasonably consult with the Board and consider in good faith the views of the Board in connection with material decisions and communications related to the Drag-Along Sale, including (i) identification and solicitation of prospective purchasers (including securing the services of an investment bank and/or other professional advisors to assist in procuring such purchasers), (ii) preparation of preliminary marketing and auction materials, and (iii) negotiation and execution of transaction documentation. The Drag-Along Seller shall use its reasonable best efforts to provide the Board with a reasonable opportunity to attend material meetings and calls related to the Drag-Along Sale and the Drag-Along Seller will use its reasonable best efforts to provide reasonable advanced notice of the same The Drag-Along Seller shall use reasonable best efforts to keep the Board reasonably informed on a reasonably current basis of material developments in connection with such Drag-Along Sale. The Company shall reimburse the Drag-Along Seller for all reasonable and documented out-of-pocket expenses incurred by the Drag-Along Seller in connection with the Drag-Along Sale.
(i)
Each of the Shareholders will reasonably cooperate with each other and the Company in connection with the Drag-Along Sale, subject to Section 9.10 below.
Section 9.10 Additional Conditions to Tag-Along Sales and Drag-Along Sales . Notwithstanding anything contained in Section 9.08 or Section 9.09 , the rights and obligations of the other Shareholders to participate in a Tag-Along Sale under Section 9.08 or a Drag-Along Sale under Section 9.09 are subject to the following conditions:
(a) upon the consummation of such Tag-Along Sale or Drag-Along Sale, except as otherwise provided in Section 9.09(c) , (i) all of the Shareholders participating therein will receive the same form of consideration, including all payments whatsoever to any of its Affiliates (including transaction fees, exit fees, advisor and management fees), and (ii) if any Shareholders are given an option as to the form and amount of consideration to be received, all Shareholders participating therein will be given the same option; and
(b) each other Shareholder shall (i) make such representations, warranties and covenants, provide such indemnities, releases and enter into such definitive agreements as are customary for transactions of the nature of the proposed Transfer; provided , that if the other Shareholders are required to provide any representations or indemnities in connection with such Transfer, liability for misrepresentation or indemnity shall (as to such other Shareholders) be expressly stated to be several but not joint and each other Shareholder shall not be liable for more than its pro rata share (based on the proceeds to be received) of any liability for misrepresentation or indemnity, (ii) benefit from all of the same provisions of the definitive agreements as the Tag-Along Seller or Drag-Along Seller, as the case may be, and (iii) be required to bear their proportionate share of any escrows, holdbacks or adjustments in purchase price; provided, that, with respect to a Drag-Along Sale the Non-Drag-Along Seller (1) shall not be obligated to provide indemnification obligations that exceed its proceeds from the transaction, (2) shall not, unless the Non-Drag-Along Seller consents otherwise in its sole discretion, receive consideration other than cash or freely marketable securities, and (3) shall not be obligated to make any representations or warranties other than in relation to its due organization, title to the securities it is selling, its authority and capacity to effect the transfer and the absence of any conflict under Applicable Law or its organizational documents or any contract that would prevent or delay the transfer (it being understood that this Section 9.10(b) shall not limit, and each Shareholder shall be responsible for, severally and not jointly such Shareholder's pro rata share (based on the proceeds received) of any breach of the Company's representations and warranties).
Section 9.11 Public Offering Rights
(a) The Board, subject to the consent of Yucaipa pursuant to Section 5.16(f) , shall have the right to cause the Company to effect an IPO at any time, and the Company will engage legal and financial advisors to act as the Company's advisors with respect thereto and the Shareholders will cooperate in all respects in marketing and effecting such IPO, subject to the rights of Shareholders under any Registration Rights Agreement. The Board shall be authorized to make decisions regarding the timing, size of offering, listing exchange, selection of underwriters and other decisions regarding the IPO.
(b) Caring Qualified IPO Process Option.
(a) Notwithstanding Yucaipa's approval right under Section 5.16(f) , for so long as Caring (together with his Permitted Transferees) holds [●] or more Common Shares (appropriately adjusted for any stock splits, stock dividends or other similar events), from and after the two (2) year period following the Effective Date, the Board shall, upon written notice by Caring, cause the Company to commence a Qualified IPO process and use commercially reasonable efforts to pursue such process. The Company shall use commercially reasonable efforts to keep Caring reasonably informed of the Qualified IPO process and provide Caring with reasonable access to personnel of the lead underwriter for periodic updates. The Board, in lieu of commencing and pursuing a Qualified IPO process, may initiate a process for the sale of the Company or otherwise pursue a Company Change of Control transaction.
(b) The Board may, in its sole direction, determine to proceed with, or terminate the Qualified IPO process after receiving bona fide feedback from prospective underwriters as to expected valuation, market receptivity and Qualified IPO execution considerations. Notwithstanding any commencement of the process, the consummation of a Qualified IPO will remain subject to the Board's approval.
(c) With respect to any IPO contemplated by this Section 9.11 , the Company (or any legal entity in which the Company is converted in order to effect the IPO) and the Shareholders shall use reasonable best efforts to structure any IPO in a tax efficient manner.
(d) In connection with the undertaking of an IPO contemplated by this Section 9.11 , if requested by the managing underwriters (if any), the Shareholders shall execute an agreement that subjects such Shareholders to customary lock-up provisions.
(e) This Agreement shall terminate in full without any further action by any Party upon the consummation of an IPO; provided , that notwithstanding the foregoing or anything else in this Agreement to the contrary, Article 6 Section 10.02 Section 12.11 Section 12.12 Section 12.13 Section 12.14 , and Section 12.15 shall not terminate, but shall remain in effect, upon, from and following any termination of this Agreement pursuant to this Section 9.11(e)
An amount equal to 10% of issued and outstanding Shares of the Company.
Section 9.12 Registration Rights . In connection with an IPO, the Company shall enter into a registration rights agreement granting to each of the Shareholders, to the extent applicable, registration rights on customary terms (the “ Registration Rights Agreement ”).
ARTICLE 10
Covenants
Section 10.01 Approved Budget Without limitation to any consent or approval right or requirement set forth in Section 5.15 Section 5.16 , and Section 5.17 , not less than thirty (30) days prior to the end of each Fiscal Year, the Company shall prepare and submit to the Board, for the Board's review and approval, an annual budget (a “ Budget ”, and a Budget approved by the Board, an “ Approved Budget ”) for the next succeeding Fiscal Year. If the Board fails to approve such Budget prior to the first day of the first Fiscal Year to be covered by such Budget, the Company shall continue to operate under the most recent Approved Budget until a new Budget is approved.
Section 10.02 Confidentiality
(a) Each Shareholder agrees that it shall hold strictly confidential and shall use, and that it shall cause any Person to whom Confidential Information is disclosed pursuant to clauses
(a) through (v) below to hold strictly confidential and to use, the Confidential Information only in connection with its investment in (or, in the case of clause (v) , its potential investment in or acquisition of an interest in) the Company and not for any other purpose. Each Shareholder agrees that it shall be responsible for any breach of the provisions of this Section 10.02 by any of its Representatives or potential transferees to whom it discloses Confidential Information. Each Shareholder further acknowledges and agrees that it shall not disclose any Confidential Information to any Person, except that Confidential Information may be disclosed:
(a) to the extent required by Applicable Law (including complying with any oral or written questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process to which a Shareholder is subject; provided , that, unless otherwise prohibited by Applicable Law, such Shareholder agrees to give the Company prompt written notice of such request(s), to the extent practicable, so that the Company may seek an appropriate protective order or similar relief (and the Shareholder shall cooperate with such efforts by the Company, and shall, in any event, make only the minimum disclosure required by such Applicable Law));
(b) to any regulatory authority to which such Shareholder or any of its Affiliates is subject or with which it has regular dealings, as long as such authority or agency is advised of the confidential nature of such information and such Shareholder uses reasonable best efforts to seek confidential treatment of such information to the extent available;
(c) to the extent required by applicable rules and regulations of any Governmental Authority with responsibility for regulating securities or by applicable stock exchange rules;
(d) if the prior written consent of the Board and the other Shareholders shall have been obtained; and
(e) in the case of the Bruce Group, to the direct and indirect equity holders of the Bruce Group, its Affiliates and their respective affiliated investment funds who are under duties or obligations of confidentiality.
(b) Nothing contained herein shall prevent the use (subject, to the extent possible, to a protective order) of Confidential Information in connection with the assertion or defense of any bona fide claim by or against the Company or any Shareholder.
Section 10.03 Non-Disparagement Each Shareholder agrees that so long as it or any of its Permitted Transferees remains a Shareholder of the Company and for twenty-four (24) months thereafter, neither such Shareholder nor any Affiliate of such Shareholder shall, make or cause to be made, any statement or announcement (including through any press, media, analysts or other persons) that constitutes an expression of negative opinion, ad hominem attack on, or otherwise disparages, defames, slanders, or impugns or is reasonably likely to damage the reputation of the Company, the MCR Investor, Caring, Yucaipa or any of their respective Subsidiaries and Affiliates. Nothing in this Section 10.03 shall apply to statements made to a court or arbitrator in good faith in connection with the assertion or defense of any bona fide claim by or against the Company or any Shareholder.
ARTICLE 11
Reporting
Section 11.01 Financial Information . The Company shall concurrently provide to each of the Shareholders (and their respective Permitted Transferees), for so long as each such Shareholder owns any Company Securities, in each case, as soon as reasonably available:
(a) the unaudited consolidated balance sheet of the Company and its Subsidiaries as at the end of such quarter and the related unaudited statement of operations and cash flow for such quarter and for the portion of the Fiscal Year then ended, in each case, prepared in accordance with GAAP (subject to normal year-end adjustments and the absence of footnotes);
(b) the audited consolidated balance sheet of the Company and its Subsidiaries as at the end of such Fiscal Year and the related audited statements of operations and cash flow for such Fiscal Year, in each case, prepared in accordance with GAAP;
(c) regular quarterly reports prepared by the CEO and/or other members of senior management including but not limited to Company cash flow and P&L forecasts and key performance indicators ; and
(d) any other information reasonably requested by such Shareholder, subject to the approval of the Board.
Section 11.02 Liability . No Party shall have any liability to any other Party in the event that any information exchanged or provided pursuant to this Agreement which is an estimate or forecast, or which is based on an estimate or forecast, is found to be inaccurate in the absence of willful misconduct by the Party providing such information.
ARTICLE 12
Miscellaneous
Section 12.01 [Reserved]
Section 12.02 [Reserved]
Section 12.03 Further Assurances Each Shareholder shall, at its own expense, sign and execute such documents and use reasonable efforts to perform such further acts as the Company, Yucaipa or MCR Investor may reasonably request from time to time to give full effect to, and give each Party the full benefit of, this Agreement.
Section 12.04 Expenses . Except as otherwise agreed in writing, each party shall bear all its own fees and expenses incurred by such Party hereto in connection with the preparation, execution and consummation of the terms of this Agreement and the Transaction Documents.
Section 12.05 Amendment or Modification . Subject to Section 5.16(a) and Section 5.17(a), this Agreement may only be amended, modified or waived by a written instrument approved by each of (i) Shareholders holding at least a majority of the voting power of the issued and outstanding Common Shares, (ii) Yucaipa and (iii) the MCR Investor; provided, however , that any amendment or modification that disproportionately and materially adversely affects one or more Shareholders in relation to similarly situated Shareholders must be consented to in writing by such disproportionately and adversely affected Shareholders holding a majority of voting power of the Common Shares held by such disproportionately and adversely affected Shareholders (excluding Yucaipa and MCR).
Section 12.06 Waiver; Cumulative Remedies . Except as explicitly stated otherwise in this Agreement, failure or delay by any Party in exercising any right or remedy under or in connection with this Agreement will not impair any right or remedy, or operate or be construed as a waiver of any right or remedy. Except as specifically provided herein, all remedies, either under this Agreement or by Applicable Law or otherwise afforded, will be cumulative and not alternative.
Section 12.07 Entire Agreement . This Agreement and the Transaction Documents constitute the entire agreement between the Parties hereto relating to the subject matter hereof and thereof and supersede and terminates any preceding or concurrent oral or written agreements between the Parties hereto with respect thereto, and no Party will have any right or remedy against any other Party arising out of or in connection with any such preceding or concurrent agreements unless expressly agreed otherwise herein.
Section 12.08 Third Party Beneficiaries . Except as otherwise provided in Section 6.01 , this Agreement is intended solely for the benefit of the Parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any Person other than the Parties hereto.
Section 12.09 Non-Assignability; Binding Effect . The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective personal and legal representatives, heirs, executors, administrators, successors and permitted assigns; provided that no Party may assign or procure the assumption of any of its rights or obligations under this Agreement, grant or procure the granting of any security interest over or otherwise transfer the benefit of this Agreement, whether in whole or in part, to any other Person without the prior written consent of the other Parties, other than in connection with a Transfer permitted pursuant to Article 9
Section 12.10 Severability . The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement. Any such invalid or unenforceable provision will be replaced or be deemed to be replaced with a provision that is valid and enforceable and most closely resembles the intent of the invalid or unenforceable provision.
Section 12.11 Injunctive Relief . The Parties hereto hereby acknowledge and agree that a violation of any of the terms of this Agreement will cause the other Parties and the Company irreparable injury for which an adequate remedy at law is not available. Accordingly, the Parties hereto expressly agree that in addition to any other remedy that each of the Parties and the Company may be entitled to in law or in equity, each of the Parties hereto and the Company shall, except as specifically provided otherwise in this Agreement, be entitled to specific performance of the terms of this Agreement and any injunction, restraining order or other equitable relief that may be necessary to prevent any breach(es) thereof.
Section 12.12 Governing Law . This Agreement is governed by and interpreted, construed and enforced in accordance with the laws of the state of Delaware, without regard to the conflict of laws principles thereof.
Section 12.13 Dispute Resolution.
(a) Upon the occurrence of any dispute or disagreement between the Parties hereto (including any Indemnitee) arising out of or in connection with any term or provision of this Agreement, the subject matter hereof, or the interpretation or enforcement hereof, including any claim, action, suit, investigation or proceeding of any kind, whether based in contract or tort, or whether at law or in equity, or otherwise, that arises out of or related to a Party's status or rights as a holder of Company Securities (in each case, a “ Dispute ”), the Parties hereto (including any Indemnitee) shall engage in informal, good faith discussions and attempt to resolve the Dispute for a period of no more than twenty (20) Business Days. If the Parties hereto are unable to resolve the Dispute within such twenty (20) Business Day period, then the Parties hereto (including any Indemnitee) shall comply with the dispute resolution procedure set forth in Section 12.13(b)
(b) If the Parties hereto (including any Indemnitee) are unable to resolve the Dispute pursuant to Section 12.13(a) , then such Parties (including any Indemnitee) shall submit the Dispute to final and binding arbitration in New York, New York, administered by Judicial Arbitration & Mediation Services (“ JAMS ”), or its successor, in accordance with the rules and procedures of JAMS in effect. The Parties hereto (including any Indemnitee) agree that any and all Disputes (which for purposes of this Section 12.13 will be deemed to include any action pursuant to the immediately preceding sentence) that are submitted to arbitration shall be decided by three (3) neutral arbitrators who are retired judges or attorneys licensed to practice law in New York who are experienced in complex commercial transactions. Within seven (7) days of the commencement of arbitration, each of the MCR Investor, Yucaipa, and the RC Director (or, if there shall be no RC Director at such time, the Designated Directors) shall select one (1) arbitrator. The Parties hereto will cooperate with JAMS and with one another in selecting such arbitrators and in scheduling the arbitration proceedings in accordance with applicable JAMS procedures. The arbitration shall be conducted in accordance with the JAMS Comprehensive Arbitration Rules & Procedures as those Rules exist on th e Effective Date of this Agreement, including Rules 16.1 and 16.2 of those Rules. The Parties hereto agree that they will participate in the arbitration in good faith and each Party hereto participating in any arbitration proceedings will bear such Party's own attorneys' fees and costs associated with the arbitration, unless such Party is ordered to pay reasonable costs and expenses pursuant to the final determination by the arbitrators. In any arbitration arising out of or related to this Agreement, the arbitration panel shall, in the final award, award to the substantially prevailing party, if any, the costs and attorneys' fees reasonably incurred by the substantially prevailing party in connection with the arbitration. If, in the final award, the arbitration panel determines a party to be the substantially prevailing party under circumstances where the substantially prevailing party won on some but not all of the claims and counterclaims, the arbitration panel may award the substantially prevailing party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the substantially prevailing party in connection with the arbitration. The arbitration panel shall apply Delaware law without reference to conflicts of laws principles that would result in the application of the law of a jurisdiction other than Delaware. Any award issued as a result of such arbitration shall be final and binding among the Parties hereto and shall be enforceable by any court having jurisdiction over such Party against whom enforcement is sought. The Parties hereto (including any Indemnitee) expressly acknowledge and understand that by entering into this Agreement, each Party hereto (including any Indemnitee) is waiving such Party's respective rights to have any Dispute among the Parties hereto adjudicated by a court or by a jury. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in this paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act.
(c) Except as may be required by Applicable Law or court order, the Parties hereto (including any Indemnitee) agree to maintain confidentiality as to all aspects of any arbitration, including its existence and results, except that nothing herein shall prevent any Party hereto from disclosing information regarding such arbitration for purposes of proceedings to enforce this clause or to enforce the award or for purposes of seeking provisional remedies from a court of competent jurisdiction. The Parties hereto (including any Indemnitee) further agree to obtain the agreement of the arbitral tribunal to preserve the confidentiality of the arbitration.
(d) By agreeing to arbitration, the Parties hereto do not intend to deprive the Delaware Courts of their ability to issue any form of provisions remedy, including but not limited to a preliminary injunction or attachment in aid of the arbitration, or to order any appropriate interim or conservatory measure. A request for such provisional remedy or interim or conservatory measure by a Party hereto to a Delaware Court shall not be deemed a waiver of this agreement to arbitrate.
(e) In any arbitration arising out of or related to this Agreement, the arbitration panel is not empowered to award punitive or exemplary damages, except where permitted by statute, and the Parties waive any right to recover any such damages. In any arbitration arising out of or related to this Agreement, the arbitration panel may not award any incidental, indirect or consequential damages, including damages for lost profits.
(f) In any arbitration arising out of or related to this Agreement, requests for documents: (i) shall be limited to documents which are directly relevant to significant issues in the case or to the case's outcome; (ii) shall be restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; and (iii) shall not include broad phraseology such as “all documents directly or indirectly related to.” In any arbitration arising out of or related to this Agreement: (i) there shall be production of electronic documents only from sources used in the ordinary course of business and absent a showing of compelling need, no such documents are required to be produced from backup servers, tapes or other media, (ii) absent a showing of compelling need, the production of electronic documents shall normally be made on the basis of generally available technology in a searchable format which is usable by the party receiving the e-documents and convenient and economical for the producing party and absent a showing of compelling need, the parties need not produce metadata, with the exception of header fields for email correspondence, (iii) the description of custodians from whom electronic documents may be collected shall be narrowly tailored to include only those individuals whose electronic documents may reasonably be expected to contain evidence that is material to the dispute, and (iv) where the costs and burdens of e-discovery are disproportionate to the nature of the dispute or to the amount in controversy, or to the relevance of the materials requested, the arbitration panel will either deny such requests or order disclosure on condition that the requesting party advance the reasonable cost of production to the other side, subject to the allocation of costs in the final award. In any arbitration arising out of or related to this Agreement, there shall be no interrogatories or requests to admit. In any arbitration arising out of or related to this Agreement, each side may take two (2) depositions. Each side's depositions are to consume no more than a total of four (4) hours. There are to be no speaking objections at the depositions, except to preserve privilege. The total period for the taking of depositions shall not exceed one (1) week.
(g) In any arbitration arising out of or related to this Agreement: (i) any party wishing to make a dispositive motion shall first submit a brief letter (not exceeding five (5) pages) explaining why the motion has merit and why it would speed the proceeding and make it more cost-effective and the other side shall have three (3) Business Days within which to respond, (ii) based on the letters, the arbitration panel will decide whether to proceed with more comprehensive briefing and argument on the proposed motion, (iii) if the arbitration panel decides to go forward with the motion, the arbitration panel will place page limits on the briefs and set an accelerated schedule for the disposition of the motion, and (iv) under ordinary circumstances, the pendency of such a motion will not serve to stay any aspect of the arbitration or adjourn any pending deadlines. The following time limits are to apply to any arbitration arising out of or related to this Agreement: (i) discovery is to be completed within fifteen (15) days of the service of the arbitration demand, (ii) the evidentiary hearing on the merits (“ Hearing ”) is to commence within thirty (30) days of the service of the arbitration demand, (iii) at the Hearing, each side is to be allotted one (1) day for presentation of direct evidence and for cross examination, (iv) a brief, reasoned award is to be rendered within forty-five (45) days of the close of the Hearing or within forty-five (45) days of service of post-hearing briefs if the arbitration panel direct the service of such briefs, and (v) the arbitration panel must agree to the foregoing deadlines before accepting appointment. Failure to meet any of the foregoing deadlines will not render the award invalid, unenforceable or subject to being vacated. The arbitration panel, however, may impose appropriate sanctions and draw appropriate adverse inferences against the party primarily responsible for the failure to meet any such deadlines.
Section 12.14 JURISDICTION AND VENUE; WAIVER OF JURY TRIAL
(a) THE PARTIES HERETO HEREBY AGREE THAT ANY SUIT, ACTION, OR PROCEEDING SEEKING TO ENFORCE A FINAL DETERMINATION RENDERED BY THE ARBITRATORS PURSUANT TO THE PROVISIONS OF Section 12.13 OR TO OBTAIN OR ANY PROVISIONAL RELIEF PURSUANT TO Section 12.13(d) MAY ONLY BE BROUGHT IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE (OR, ONLY IF SUCH COURT DECLINES TO ACCEPT JURISDICTION OVER A PARTICULAR MATTER, THEN IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE OR, IF JURISDICTION IS NOT THEN AVAILABLE IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (BUT ONLY IN SUCH EVENT), THEN IN ANY COURT SITTING OF THE STATE OF DELAWARE IN NEW CASTLE COUNTY) AND ANY APPELLATE COURT FROM ANY OF SUCH COURTS (IN ANY CASE, THE “ DELAWARE COURT ”), AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE DELAWARE COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING MAY BE SERVED ON ANY PARTY HERETO ANYWHERE IN THE WORLD, WHETHER WITHIN OR WITHOUT THE JURISDICTION OF ANY OF THE DELAWARE COURTS. WITHOUT LIMITING THE FOREGOING, EACH PARTY HERETO AGREES THAT SERVICE OF PROCESS ON SUCH PARTY AS PROVIDED IN Section 12.15 SHALL BE DEEMED EFFECTIVE SERVICE OF PROCESS ON SUCH PARTY WHEN DEEMED GIVEN PURSUANT TO Section 12.15 PROVIDED THAT NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
(b) TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH PARTY HERETO WAIVES, AND COVENANTS THAT SUCH PARTY SHALL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY JUDICIAL ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTED WITH THE DEALINGS OF ANY PARTY HERETO OR THE COMPANY OR ANY OF ITS AFFILIATES IN CONNECTION WITH ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT CONTAINED IN THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED BY THIS AGREEMENT, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE. THE COMPANY OR ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 12.14(B) WITH ANY COURT IN ANY JURISDICTION AS WRITTEN EVIDENCE OF THE CONSENT OF THE MEMBERS TO THE WAIVER OF THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY.
Section 12.15 Notices
(a) All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by e-mail or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses:
if to the Company to:
[BRUCE]
180 Strand
London, United Kingdom WC2R 1EA
Attention: Benedict Nwaeke
Email:
if to the MCR Investor to:
[●]
[●]
Attention: [●]
with a required copy (which copy shall not constitute notice) to:
Fried, Frank, Harris, Shriver & Jacobson LLP
1 New York Plaza
New York, NY 10004
Attention: Patrick Dowd
Email:
if to Yucaipa:
The Yucaipa Companies, LLC
9130 W Sunset Boulevard,
West Hollywood, CA 90069-3110
Attention: Dan Larsen
Email:
with a required copy (which copy shall not constitute notice) to:
Sidley Austin LLP
787 Seventh Avenue
New York, NY 10019
Attention: Samir A. Gandhi; John H. Butler; Ayo Badejo
Emails:
if to any other Shareholder: to such addresses reflected in the books and records of the Company.
(b) By written notice to the Company or any Shareholder may change the address to which notices shall be directed.
Section 12.16 Counterparts . This Agreement may be executed in any number of counterparts, and delivered by facsimile or otherwise, each of which shall be deemed an original of this Agreement and all of which together shall constitute one and the same instrument.
[Signature page follows]
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first written above.
THE COMPANY
[●]
By:
Name:
Title:
[Signature Page to Voting Agreement]
YUCAIPA
[●]
By:
Name:
Title:
[Signature Page to Voting Agreement]
MCR INVESTOR
MCR HOSPITALITY FUND IV QP LP
By: MCR Hospitality Fund IV GP LLC, its general partner
By:
Name:
Title:
MCR HOSPITALITY FUND IV LP
By: MCR Hospitality Fund IV GP LLC, its general partner
By:
Name:
Title:
[Signature Page to Voting Agreement]
BRUCE GROUP
CLASSACT, LLC
By:
Name:
Title:
[Signature Page to Voting Agreement]
[●]:
[●]
By:
Name:
Title:
[Signature Page to Voting Agreement]
EXHIBIT A
SHAREHOLDER INFORMATION
EXHIBIT B-1
INITIAL DIRECTORS
This Exhibit sets out the Initial Directors of the Company as of the Effective Date.
Directors
Type of Director
Ronald Burkle
Yucaipa Designee
[●]
Yucaipa Designee
[●]
Yucaipa Designee
Tyler Morse
MCR Investor Designee
Joseph Delli Santi
MCR Investor Designee
Ashton Kutcher
Designated Director
Richard Caring
RC Director
EXHIBIT B-2
NON-VOTING REPRESENTATIVES
This Exhibit sets out the initial Non-Voting Representatives of the Company as of the Effective Date.
Non-Voting Representative
[●]
[●]
[●]
[●]
EXHIBIT C
PRE-APPROVED AFFILIATE TRANSACTIONS
Exhibit 99.1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of the foregoing statement on Schedule 13D and any amendments thereto with respect to the Class A Common Stock of Soho House & Co Inc. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that it knows or has reason to believe that such information is inaccurate. This agreement may be executed in any number of counterparts and all such counterparts taken together shall constitute one and the same instrument.
Dated: August 19, 2025
The Goldman Sachs Group, Inc.
By:
/s/ Crystal Orgill
Name:
Crystal Orgill
Title:
Attorney-in-fact
Goldman Sachs & Co. LLC
By:
/s/ Crystal Orgill
Name:
Crystal Orgill
Title:
Attorney-in-fact
Broad Street Principal Investments, L.L.C.
By:
/s/ Crystal Orgill
Name:
Crystal Orgill
Title:
Attorney-in-fact
Goldman Sachs Asset Management, L.P.
By:
/s/ Crystal Orgill
Name:
Crystal Orgill
Title:
Attorney-in-fact
West Street Strategic Solutions Fund I, L.P.
By:
/s/ Crystal Orgill
Name:
Crystal Orgill
Title:
Attorney-in-fact
West Street Strategic Solutions Fund I-(C), L.P.
By:
/s/ Crystal Orgill
Name:
Crystal Orgill
Title:
Attorney-in-fact
WSSS Investments W, LLC
By:
/s/ Crystal Orgill
Name:
Crystal Orgill
Title:
Attorney-in-fact
WSSS Investments X, LLC
By:
/s/ Crystal Orgill
Name:
Crystal Orgill
Title:
Attorney-in-fact
WSSS Investments I, LLC
By:
/s/ Crystal Orgill
Name:
Crystal Orgill
Title:
Attorney-in-fact
WSSS Investments U, LLC
By:
/s/ Crystal Orgill
Name:
Crystal Orgill
Title:
Attorney-in-fact
West Street CT Private Credit Partnership, L.P.
By:
/s/ Crystal Orgill
Name:
Crystal Orgill
Title:
Attorney-in-fact
Exhibit 99.2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that THE GOLDMAN SACHS GROUP, INC. (the “Company”) does hereby make, constitute and appoint each of Jamison Yardley, Crystal Orgill, Chad Christensen and Carson Williams, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934 (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
THIS POWER OF ATTORNEY shall remain in full force and effect until the earlier of (i) June 15, 2027 and (ii) such time that it is revoked in writing by the Company; provided that in the event the attorney-in-fact ceases to be an employee of the Company or its affiliates or ceases to perform the function in connection with which he/she was appointed attorney-in-fact prior to such time, this Power of Attorney shall cease to have effect in relation to such attorney-in-fact upon such cessation but shall continue in full force and effect in relation to any remaining attorneys-in-fact. The Company has the unrestricted right unilaterally to revoke this Power of Attorney.
This Power of Attorney shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 17, 2024.
THE GOLDMAN SACHS GROUP, INC.
By:
/s/ Michael S. Bosworth
Name:
Michael S. Bosworth
Title:
Deputy General Counsel
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN SACHS & CO. LLC (the “Company”) does hereby make, constitute and appoint each of Jamison Yardley, Crystal Orgill, Chad Christensen and Carson Williams, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934 (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
THIS POWER OF ATTORNEY shall remain in full force and effect until the earlier of (i) June 15, 2027 and (ii) such time that it is revoked in writing by the Company; provided that in the event the attorney-in-fact ceases to be an employee of the Company or its affiliates or ceases to perform the function in connection with which he/she was appointed attorney-in-fact prior to such time, this Power of Attorney shall cease to have effect in relation to such attorney-in-fact upon such cessation but shall continue in full force and effect in relation to any remaining attorneys-in-fact. The Company has the unrestricted right unilaterally to revoke this Power of Attorney.
This Power of Attorney shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 7th, 2024.
GOLDMAN SACHS & CO. LLC
By:
/s/ Kieu Frisby
Name:
Kieu Frisby
Title:
Managing Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that BROAD STREET PRINICIPAL INVESTMENTS, L.L.C. (the “Company”) does hereby make, constitute and appoint each of Jamison Yardley, Crystal Orgill, Chad Christensen, and Carson Williams, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934 (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
THIS POWER OF ATTORNEY shall remain in full force and effect until the earlier of (i) August 5, 2027 and (ii) such time that it is revoked in writing by the undersigned; provided that in the event the attorney-in-fact ceases to be an employee of the Company or its affiliates or ceases to perform the function in connection with which he/she was appointed attorney-in-fact prior to such time, this Power of Attorney shall cease to have effect in relation to such attorney-in-fact upon such cessation but shall continue in full force and effect in relation to any remaining attorneys-in-fact. The Company has the unrestricted right unilaterally to revoke this Power of Attorney.
This Power of Attorney shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 6, 2024.
BROAD STREET PRINICIPAL INVESTMENTS, L.L.C.
By:
/s/ William Y. Eng
Name:
William Y. Eng
Title:
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that GOLDMAN SACHS ASSET MANAGEMENT, L.P. (the “Company”) does hereby make, constitute and appoint each of Jamison Yardley, Crystal Orgill, Chad Christensen and Carson Williams, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934 (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
THIS POWER OF ATTORNEY shall remain in full force and effect until the earlier of (i) August 19, 2028 and (ii) such time that it is revoked in writing by the Company; provided that in the event the attorney-in-fact ceases to be an employee of the Company or its affiliates or ceases to perform the function in connection with which he/she was appointed attorney-in-fact prior to such time, this Power of Attorney shall cease to have effect in relation to such attorney-in-fact upon such cessation but shall continue in full force and effect in relation to any remaining attorneys-in-fact. The Company has the unrestricted right unilaterally to revoke this Power of Attorney.
This Power of Attorney shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 19, 2025.
GOLDMAN SACHS ASSET MANAGEMENT, L.P.
By:
/s/ William Y. Eng
Name:
William Y. Eng
Title:
Vice President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that WEST STREET STRATEGIC SOLUTIONS FUND I, L.P. (the “Company”) does hereby make, constitute and appoint each of Jamison Yardley, Crystal Orgill, Chad Christensen, and Carson Williams, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934, (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
THIS POWER OF ATTORNEY shall remain in full force and effect until the earlier of (i) August 5, 2027 and (ii) such time that it is revoked in writing by the Company; provided that in the event the attorney-in-fact ceases to be an employee of the Company or its affiliates or ceases to perform the function in connection with which he/she was appointed attorney-in-fact prior to such time, this Power of Attorney shall cease to have effect in relation to such attorney-in-fact upon such cessation but shall continue in full force and effect in relation to any remaining attorneys-in-fact. The Company has the unrestricted right unilaterally to revoke this Power of Attorney.
This Power of Attorney shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 6, 2024.
WEST STREET STRATEGIC SOLUTIONS FUND I, L.P.
By: Goldman Sachs & Co. LLC, Attorney-in-Fact
By:
/s/ Hristo Dimitrov
Name:
Hristo Dimitrov
Title:
Managing Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that WEST STREET STRATEGIC SOLUTIONS FUND I-(C), L.P. (the “Company”) does hereby make, constitute and appoint each of Jamison Yardley, Crystal Orgill, Chad Christensen, and Carson Williams, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934 (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
THIS POWER OF ATTORNEY shall remain in full force and effect until the earlier of (i) August 5, 2027 and (ii) such time that it is revoked in writing by the Company; provided that in the event the attorney-in-fact ceases to be an employee of the Company or its affiliates or ceases to perform the function in connection with which he/she was appointed attorney-in-fact prior to such time, this Power of Attorney shall cease to have effect in relation to such attorney-in-fact upon such cessation but shall continue in full force and effect in relation to any remaining attorneys-in-fact. The Company has the unrestricted right unilaterally to revoke this Power of Attorney.
This Power of Attorney shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 6, 2024.
WEST STREET STRATEGIC SOLUTIONS FUND I-(C), L.P.
By: Goldman Sachs & Co. LLC, Attorney-in-Fact
By:
/s/ Hristo Dimitrov
Name:
Hristo Dimitrov
Title:
Managing Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that WSSS INVESTMENTS W, LLC (the “Company”) does hereby make, constitute and appoint each of Jamison Yardley, Crystal Orgill, Chad Christensen, and Carson Williams, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934 (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
THIS POWER OF ATTORNEY shall remain in full force and effect until the earlier of (i) June 3, 2028 and (ii) such time that it is revoked in writing by the Company; provided that in the event the attorney-in-fact ceases to be an employee of the Company or its affiliates or ceases to perform the function in connection with which he/she was appointed attorney-in-fact prior to such time, this Power of Attorney shall cease to have effect in relation to such attorney-in-fact upon such cessation but shall continue in full force and effect in relation to any remaining attorneys-in-fact. The Company has the unrestricted right unilaterally to revoke this Power of Attorney.
This Power of Attorney shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 5th, 2025.
WSSS INVESTMENTS W, LLC
By: Goldman Sachs Asset Management , L.P., as Investment Manager
By:
/s/ Hristo Dimitrov
Name:
Hristo Dimitrov
Title:
Authorized Signatory
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that WSSS INVESTMENTS X, LLC (the “Company”) does hereby make, constitute and appoint each of Jamison Yardley, Crystal Orgill, Chad Christensen, and Carson Williams, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934 (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
THIS POWER OF ATTORNEY shall remain in full force and effect until the earlier of (i) June 3, 2028 and (ii) such time that it is revoked in writing by the Company; provided that in the event the attorney-in-fact ceases to be an employee of the Company or its affiliates or ceases to perform the function in connection with which he/she was appointed attorney-in-fact prior to such time, this Power of Attorney shall cease to have effect in relation to such attorney-in-fact upon such cessation but shall continue in full force and effect in relation to any remaining attorneys-in-fact. The Company has the unrestricted right unilaterally to revoke this Power of Attorney.
This Power of Attorney shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 5th, 2025.
WSSS INVESTMENTS X, LLC
By: Goldman Sachs Asset Management, L.P., as Investment Manager
By:
/s/ Hristo Dimitrov
Name:
Hristo Dimitrov
Title:
Authorized Signatory
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that WSSS INVESTMENTS I, LLC (the “Company”) does hereby make, constitute and appoint each of Jamison Yardley, Crystal Orgill, Chad Christensen, and Carson Williams, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934 (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
THIS POWER OF ATTORNEY shall remain in full force and effect until the earlier of (i) June 3, 2028 and (ii) such time that it is revoked in writing by the Company; provided that in the event the attorney-in-fact ceases to be an employee of the Company or its affiliates or ceases to perform the function in connection with which he/she was appointed attorney-in-fact prior to such time, this Power of Attorney shall cease to have effect in relation to such attorney-in-fact upon such cessation but shall continue in full force and effect in relation to any remaining attorneys-in-fact. The Company has the unrestricted right unilaterally to revoke this Power of Attorney.
This Power of Attorney shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 5th, 2025.
WSSS INVESTMENTS I, LLC
By: Goldman Sachs Asset Management, L.P., as Investment Manager
By:
/s/ Hristo Dimitrov
Name:
Hristo Dimitrov
Title:
Authorized Signatory
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that WSSS INVESTMENTS U, LLC (the “Company”) does hereby make, constitute and appoint each of Jamison Yardley, Crystal Orgill, Chad Christensen, and Carson Williams, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934 (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof
THIS POWER OF ATTORNEY shall remain in full force and effect until the earlier of (i) June 3, 2028 and (ii) such time that it is revoked in writing by the Company; provided that in the event the attorney-in-fact ceases to be an employee of the Company or its affiliates or ceases to perform the function in connection with which he/she was appointed attorney-in-fact prior to such time, this Power of Attorney shall cease to have effect in relation to such attorney-in-fact upon such cessation but shall continue in full force and effect in relation to any remaining attorneys-in-fact. The Company has the unrestricted right unilaterally to revoke this Power of Attorney.
This Power of Attorney shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of June 5th, 2025.
WSSS INVESTMENTS U, LLC
By: Goldman Sachs Asset Management, L.P., as Investment Manager
By:
/s/ Hristo Dimitrov
Name:
Hristo Dimitrov
Title:
Authorized Signatory
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS that WEST STREET CT PRIVATE CREDIT PARTNERSHIP, L.P. (the “Company”) does hereby make, constitute and appoint each of Jamison Yardley, Crystal Orgill, Chad Christensen, and Carson Williams, acting individually, its true and lawful attorney, to execute and deliver in its name and on its behalf whether the Company is acting individually or as representative of others, any and all filings required to be made by the Company under the Securities Exchange Act of 1934 (as amended, the “Act”), with respect to securities which may be deemed to be beneficially owned by the Company under the Act, giving and granting unto each said attorney-in-fact power and authority to act in the premises as fully and to all intents and purposes as the Company might or could do if personally present by one of its authorized signatories, hereby ratifying and confirming all that said attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
THIS POWER OF ATTORNEY shall remain in full force and effect until the earlier of (i) August 5, 2027 and (ii) such time that it is revoked in writing by the Company; provided that in the event the attorney-in-fact ceases to be an employee of the Company or its affiliates or ceases to perform the function in connection with which he/she was appointed attorney-in-fact prior to such time, this Power of Attorney shall cease to have effect in relation to such attorney-in-fact upon such cessation but shall continue in full force and effect in relation to any remaining attorneys-in-fact. The Company has the unrestricted right unilaterally to revoke this Power of Attorney.
This Power of Attorney shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to rules of conflicts of law.
IN WITNESS WHEREOF, the undersigned has duly subscribed these presents as of August 6, 2024.
WEST STREET CT PRIVATE CREDIT PARTNERSHIP, L.P.
By: Goldman Sachs & Co. LLC, Attorney-in-Fact
By:
/s/ Hristo Dimitrov
Name:
Hristo Dimitrov
Title:
Managing Director
Exhibit 99.3
SCHEDULES I, II-A, and II-B
SCHEDULE I
The name of each director and executive officer of The Goldman Sachs Group, Inc. is set forth below.
The business address of each person listed below is c/o Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282.
Each person is a citizen of the United States of America except for: Lakshmi N. Mittal, who is a citizen of India. Alex Golten is a citizen of the United States and United Kingdom. The present principal occupation or employment of each of the listed persons is set forth below.
NAME
PRESENT PRINCIPAL OCCUPATION
David M. Solomon
Chairman and Chief Executive Officer of The Goldman Sachs Group, Inc.
M. Michele Burns
Former Chairman and Chief Executive Officer, Mercer LLC; Former Chief Financial Officer of each of: Marsh & McLennan Companies, Inc., Mirant Corp. and Delta Air Lines, Inc.
Denis P. Coleman III
Chief Financial Officer of The Goldman Sachs Group, Inc.
Mark A. Flaherty
Former Vice Chairman, Wellington Management Company
Sheara J. Fredman
Chief Accounting Officer of The Goldman Sachs Group, Inc.
Carey Halio
Global Treasurer of The Goldman Sachs Group, Inc.
Kimberley D. Harris
Executive Vice President of Comcast Corporation; General Counsel of NBCUniversal
John B. Hess
Former Chief Executive Officer, Hess Corporation; Former Chairman and CEO, Hess Midstream LP
Kevin R. Johnson
Former President and Chief Executive Officer, Starbucks Corporation
Ellen J. Kullman
Executive Chair, Carbon 3D, Inc.
Alex S. Golten
Chief Risk Officer of The Goldman Sachs Group, Inc.
KC McClure
Former Chief Financial Officer, Accenture plc
Lakshmi N. Mittal
Executive Chairman of ArcelorMittal S.A.
Thomas K. Montag
Chief Executive Officer of Rubicon Carbon LLC
Peter Oppenheimer
Former Senior Vice President and Chief Financial Officer of Apple, Inc.
John F.W. Rogers
Executive Vice President of The Goldman Sachs Group, Inc.
Kathryn H. Ruemmler
Chief Legal Officer and General Counsel of The Goldman Sachs Group, Inc.
Jan E. Tighe
Former Vice Admiral, United States Navy
David A. Viniar
Former Chief Financial Officer of The Goldman Sachs Group, Inc.
John E. Waldron
President and Chief Operating Officer of The Goldman Sachs Group, Inc.
SCHEDULE II-A
The name and principal occupation of each member of the Goldman Sachs Asset Management Private Credit Investment Committee, which exercises the authority of Goldman Sachs & Co. LLC in managing BSPI and each of the GS Funds.
The business address for each member listed below is c/o Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282, except as follows: for James Reynolds, Moritz Jobke, Amitayush Bahri it is Plumtree Court, 25 Shoe Lane, London EC4A 4AU, England; and for David Miller and Greg Watts it is 11605 Haynes Bridge Rd. Suite 695, Alpharetta, GA 30009.
All members listed below are United States citizens, except as follows: James Reynolds is a citizen of France; Amitayush Bahri is a citizen of the United Kingdom; Katie Park is a citizen of the Republic of Korea; Moritz Jobke is a citizen of Germany; Beat Cabiallavetta is a citizen of Switzerland, Fiona D'souza is a citizen of India; and Nicole Agnew is a citizen of Canada.
NAME
PRESENT PRINCIPAL OCCUPATION
Richard A. Friedman
Managing Director of Goldman Sachs & Co. LLC
James Reynolds
Managing Director of Goldman Sachs International
Nicole Agnew
Managing Director of Goldman Sachs & Co. LLC
Patrick Armstrong
Managing Director of Goldman Sachs & Co. LLC
Amitayush Bahri
Managing Director of Goldman Sachs International
Vivek Bantwal
Managing Director of Goldman Sachs & Co. LLC
Keith Braun
Managing Director of Goldman Sachs & Co. LLC
Steven Budig
Managing Director of Goldman Sachs & Co. LLC
Beat Cabiallavetta
Managing Director of Goldman Sachs & Co. LLC
Fiona D'souza
Vice President of Goldman Sachs & Co. LLC
Hristo D. Dimitrov
Managing Director of Goldman Sachs & Co. LLC
David Felman
Managing Director of Goldman Sachs & Co. LLC
Moritz Jobke
Managing Director of Goldman Sachs International
Allison Lee
Managing Director of Goldman Sachs & Co. LLC
David Miller
Managing Director of Goldman Sachs & Co. LLC
Katie Park
Vice President of Goldman Sachs & Co. LLC
Stephanie Rader
Managing Director of Goldman Sachs & Co. LLC
Kevin Sterling
Managing Director of Goldman Sachs & Co. LLC
Greg Watts
Managing Director of Goldman Sachs & Co. LLC
SCHEDULE II-B
The name, position and present principal occupation of each executive officer of BSPI is set forth below.
The business address for all the executive officers listed below is c/o Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282, except as follows: The business address of David Campbell, Colin Walsh, Joshua Richardson, Amit Sinha and Jason Kreuziger is 555 California Street, San Francisco, CA 94104; the business address of each of Oksana Beard, David Bell, Terence Doherty, Justin Betzen, Katherine Bloom, Michael Watts, Matthew Carter, Christopher Brett, Christopher Nelson, Andrew White, Clayton Wilmer and Daniel Farrar is 2001 Ross Avenue, Suite 2800, Dallas, TX 75201; the business address of Johanna Volpi is 30 Hudson Street, Jersey City, NJ 07302; the business address of Omar Chaudhary and Ryan Flanagan is 4000 MacArthur Boulevard, Suite 1000, Newport Beach, CA, 92660; the business address of each of David Miller, Taylor Mefford, Tucker Greene and Gregory Watts is 11605 Haynes Bridge Rd. Suite 695, Alpharetta, GA 30009; and the business address of Ryan Flanagan is 8105 Irvine Center Dr #560, Irvine, CA 92618.
All executive officers listed below are United States citizens, except as follows: Cedric Lucas is a citizen of France; Adrian M. Jones is a citizen of Ireland; James Garman and Anthony Arnold are citizens of the United Kingdom; Beat Cabiallavetta is a citizen of Switzerland; Joonsung Park is a citizen of the Republic of Korea; Gunduz Shirin is a citizen of Azerbaijan; Dennis van Laer is a citizen of the Netherlands and United Kingdom; Harsh Nanda is a citizen of India; David Campbell is a citizen of Australia; Stefano Gamba is a citizen of Italy; Simon Kubbies is a citizen of Germany; Richard Waitumbu is a citizen of Kenya, Nicole Agnew, Nicholas Semeniuk, and Sebastien Gagnon are citizens of Canada.
NAME
POSITION
PRESENT PRINCIPAL OCCUPATION
Richard A. Friedman
President
Managing Director of Goldman Sachs & Co. LLC
Nicole Agnew
Vice President
Managing Director of Goldman Sachs & Co. LLC
Patrick Armstrong
Vice President
Managing Director of Goldman Sachs & Co. LLC
Anthony Arnold
Vice President
Managing Director of Goldman Sachs & Co. LLC
Jeffrey Bernstein
Vice President
Managing Director of Goldman Sachs & Co. LLC
Steven Budig
Vice President
Managing Director of Goldman Sachs & Co. LLC
Beat Cabiallavetta
Vice President
Managing Director of Goldman Sachs & Co. LLC
Darren Cohen
Vice President
Managing Director of Goldman Sachs & Co. LLC
Jeffrey M. Fine
Vice President
Managing Director of Goldman Sachs & Co. LLC
James Garman
Vice President
Managing Director of Goldman Sachs & Co. LLC
Bradley J. Gross
Vice President
Managing Director of Goldman Sachs & Co. LLC
Adrian M. Jones
Vice President
Managing Director of Goldman Sachs & Co. LLC
Cedric Lucas
Vice President
Managing Director of Goldman Sachs & Co. LLC
David Miller
Vice President
Managing Director of Goldman Sachs & Co. LLC
Hillel Moerman
Vice President
Managing Director of Goldman Sachs & Co. LLC
Harsh Nanda
Vice President
Managing Director of Goldman Sachs & Co. LLC
Kenneth Pontarelli
Vice President
Managing Director of Goldman Sachs & Co. LLC
Laurie E. Schmidt
Vice President & Treasurer
Managing Director of Goldman Sachs & Co. LLC
Leonard Seevers
Vice President
Managing Director of Goldman Sachs & Co. LLC
Greg A. Shell
Vice President
Managing Director of Goldman Sachs & Co. LLC
Kevin Sterling
Vice President
Managing Director of Goldman Sachs & Co. LLC
Gregory Watts
Vice President
Managing Director of Goldman Sachs & Co. LLC
Baffour Abedi
Vice President
Managing Director of Goldman Sachs & Co. LLC
Vikas Agrawal
Vice President
Managing Director of Goldman Sachs & Co. LLC
Daniel Alger
Vice President
Managing Director of Goldman Sachs & Co. LLC
Oksana Beard
Vice President
Managing Director of Goldman Sachs & Co. LLC
David Bell
Vice President
Managing Director of Goldman Sachs & Co. LLC
Justin Betzen
Vice President
Managing Director of Goldman Sachs & Co. LLC
Katherine Bloom
Vice President
Managing Director of Goldman Sachs & Co. LLC
Jeff Boyd
Vice President
Managing Director of Goldman Sachs & Co. LLC
Christopher Brett
Vice President
Managing Director of Goldman Sachs & Co. LLC
NAME
POSITION
PRESENT PRINCIPAL OCCUPATION
David Campbell
Vice President
Managing Director of Goldman Sachs & Co. LLC
Matthew Carter
Vice President
Managing Director of Goldman Sachs & Co. LLC
Benjamin Case
Vice President
Managing Director of Goldman Sachs & Co. LLC
Omar Chaudhary
Vice President
Managing Director of Goldman Sachs & Co. LLC
Michael Coleman
Vice President
Managing Director of Goldman Sachs & Co. LLC
Dirk Degenaars
Vice President
Managing Director of Goldman Sachs & Co. LLC
Johanna Diaz
Vice President
Managing Director of Goldman Sachs & Co. LLC
Terence Doherty
Vice President
Managing Director of Goldman Sachs & Co. LLC
Ryan Flanagan
Vice President
Managing Director of Goldman Sachs & Co. LLC
Sebastien Gagnon
Vice President
Managing Director of Goldman Sachs & Co. LLC
Diego Kantt
Vice President
Managing Director of Goldman Sachs & Co. LLC
Philip Grovit
Vice President
Managing Director of Goldman Sachs & Co. LLC
Stefano Gamba
Vice President
Managing Director of Goldman Sachs & Co. LLC
Ashwin Gupta
Vice President
Managing Director of Goldman Sachs & Co. LLC
Tucker Greene
Vice President
Managing Director of Goldman Sachs & Co. LLC
Vivek Kagzi
Vice President
Managing Director of Goldman Sachs & Co. LLC
Michael Kondoleon
Vice President
Managing Director of Goldman Sachs & Co. LLC
Stephen Kerns
Vice President
Managing Director of Goldman Sachs & Co. LLC
Jason Kreuziger
Vice President
Managing Director of Goldman Sachs & Co. LLC
Simon Kubbies
Vice President
Managing Director of Goldman Sachs & Co. LLC
Qing Li
Vice President
Managing Director of Goldman Sachs & Co. LLC
Christina Sun Li
Vice President
Managing Director of Goldman Sachs & Co. LLC
Steven Pack
Vice President
Managing Director of Goldman Sachs & Co. LLC
Burke Loeffler
Vice President
Managing Director of Goldman Sachs & Co. LLC
Teresa Mattamouros
Vice President
Managing Director of Goldman Sachs & Co. LLC
Scott Maxfield
Vice President
Managing Director of Goldman Sachs & Co. LLC
Taylor Mefford
Vice President
Managing Director of Goldman Sachs & Co. LLC
Antoine Munfa
Vice President
Managing Director of Goldman Sachs & Co. LLC
Christopher Nelson
Vice President
Managing Director of Goldman Sachs & Co. LLC
Joonsung Park
Vice President
Managing Director of Goldman Sachs & Co. LLC
Jeff Possick
Vice President
Managing Director of Goldman Sachs & Co. LLC
Andrew Rhee
Vice President
Managing Director of Goldman Sachs & Co. LLC
Joshua Richardson
Vice President
Managing Director of Goldman Sachs & Co. LLC
Nicholas Semeniuk
Vice President
Managing Director of Goldman Sachs & Co. LLC
Gunduz Shirin
Vice President
Managing Director of Goldman Sachs & Co. LLC
Amit Sinha
Vice President
Managing Director of Goldman Sachs & Co. LLC
Mallika Sinha
Vice President
Managing Director of Goldman Sachs & Co. LLC
Jason Slocum
Vice President
Managing Director of Goldman Sachs & Co. LLC
Jamison Hill
Vice President
Managing Director of Goldman Sachs & Co. LLC
Richard Waitumbi
Vice President
Managing Director of Goldman Sachs & Co. LLC
Andrew Snow
Vice President
Managing Director of Goldman Sachs & Co. LLC
Jessica Tung
Vice President
Managing Director of Goldman Sachs & Co. LLC
Pim Valantagul
Vice President
Managing Director of Goldman Sachs & Co. LLC
Dennis van Laer
Vice President
Managing Director of Goldman Sachs & Co. LLC
Colin Walsh
Vice President
Managing Director of Goldman Sachs & Co. LLC
Letitia Webster
Vice President
Managing Director of Goldman Sachs & Co. LLC
Jennifer Yang
Vice President
Managing Director of Goldman Sachs & Co. LLC
Andrew White
Vice President
Managing Director of Goldman Sachs & Co. LLC
William Y. Eng
Vice President
Vice President of Goldman Sachs & Co. LLC
Scott Kilpatrick
Vice President
Managing Director of Goldman Sachs & Co. LLC
Michael Watts
Vice President
Managing Director of Goldman Sachs & Co. LLC
Clayton Wilmer
Vice President
Managing Director of Goldman Sachs & Co. LLC
NAME
POSITION
PRESENT PRINCIPAL OCCUPATION
Carey Ziegler
Vice President
Managing Director of Goldman Sachs & Co. LLC
Hristo D. Dimitrov
Vice President,
Secretary & Assistant
General Counsel
Getty Chin
Vice President & Assistant Treasurer
Managing Director of Goldman Sachs & Co. LLC
Daniel Farrar
Vice President & Assistant Treasurer
Vice President of Goldman Sachs & Co. LLC
Kirsten Frivold Imohiosen
Vice President & Assistant Treasurer
Managing Director of Goldman Sachs & Co. LLC
Larry Kleinman
Vice President & Assistant Treasurer
Managing Director of Goldman Sachs & Co. LLC
Johanna Volpi
Vice President & Assistant Treasurer
Vice President of Goldman Sachs & Co. LLC
James Nolan
Vice President & Assistant Treasurer
Managing Director of Goldman Sachs & Co. LLC
Exhibit 99.4
SCHEDULE III
On October 22, 2020, The Goldman Sachs Group, Inc. (“GS Group”) entered into an order instituting cease and desist proceedings with the Securities and Exchange Commission (“SEC”), which alleged GS Group failed to reasonably maintain a sufficient system of internal accounting controls between 2012 and 2015 with respect to the process by which it reviewed and approved the commitment of firm capital in large, significant and complex transitions, such as the three bond offerings for 1Malaysia Development Berhad (“1MDB”), and that documentation prepared in connection with the 1MDB transactions did not accurately reflect certain aspects of the bond offerings, including the involvement of a third party intermediary in the offerings. GS Group has agreed to pay a civil money penalty in the amount of $400,000,000 and disgorgement of $606,300,000.
On September 27, 2022, the SEC entered an order in which it settled charges against Goldman Sachs & Co. LLC (“Goldman Sachs”) for violating certain recordkeeping and supervisory provisions of the Securities Exchange Act of 1934 (the “Exchange Act”) by failing to maintain or preserve certain written business communications that were conducted on unapproved communication methods and failing to implement its policies and procedures that prohibit such communications. Goldman Sachs has agreed to pay a civil monetary penalty in the amount of $125,000,000 to the SEC in connection with these charges. Also on September 27, 2022, the Commodity Futures Trading Commission (the “CFTC”) issued an order filing and settling charges with Goldman Sachs for failing to maintain, preserve or produce records that were required to be kept under CFTC recordkeeping requirements and failing to diligently supervise matters related to its business as a CFTC registrant. Goldman Sachs has agreed to pay a civil monetary penalty of $75,000,000 to the CFTC.
On September 22, 2023, Goldman Sachs entered into a settlement with the SEC to resolve charges that, from November 2012 through March 2022, Goldman Sachs submitted at least 22,192 blue sheets to the SEC that inaccurately reported one or more of 43 separate types of issues that impacted its electronic blue sheets reporting. Under the SEC settlement, Goldman Sachs agreed to pay $6 million to the SEC and to cease and desist from violating recordkeeping provisions of the Exchange Act and SEC regulations. On the same day, Goldman Sachs entered into a settlement with Financial Industry Regulatory Authority (“FINRA”) to resolve similar charges. Under the FINRA settlement, Goldman Sachs consented to a censure and paid a fine of $6 million.
On September 25, 2024, GS Group entered into a settlement with the SEC to resolve charges that GS Group and certain of its affiliates failed to file on a timely basis multiple reports required under Section 16(a) of the Exchange Act with the SEC with respect to multiple issuers. Under the SEC settlement, GS Group agreed to pay $300,000 to the SEC and to cease and desist from violating Section 16(a) of the Exchange Act and the SEC regulations.
Exhibit 99.5
SCHEDULE IV
All transactions disclosed in this Schedule IV were effected by Goldman Sachs & Co. LLC in the ordinary course of business as part of basket transactions that included the Class A Common Stock. The transactions were for cash and effected in the open market on the NYSE.
Trade Date
Buy (B)/
Sell (S)
Quantity
Price
S
S
S
S
S
S
B
B
S
S
S
S
S
S
S
S
S
S
S
Exhibit 99.6
Item 5(a)
As of the day preceding the filing of this Amendment No. 2, the following table sets forth the aggregate number of shares of Class A Common Stock and percentage of Class A Common Stock beneficially owned by each of the Reporting Persons, as well as the number of shares of Class A Common Stock as to which each Reporting Person has the sole power to vote or to direct the vote, shared power to vote or to direct the vote, sole power to dispose or to direct the disposition of, or shared power to dispose or to direct the disposition of, as of such date. The information below is based on 53,604,734 shares Class A Common Stock outstanding as of August 14, 2025, as disclosed in Exhibit 2.1 to the Issuer's Form 8-K filed with the U.S. Securities and Exchange Commission (the “SEC”) on August 18, 2025.
Reporting Person
Amount beneficially owned
Percent
of Class
Sole
power
to vote
or direct
the vote
Shared
power to
vote or
direct the
vote
Sole power
to dispose
of to direct
the
disposition
Shared
power to
dispose or
to direct
the
disposition
The Goldman Sachs Group, Inc.
Goldman Sachs & Co. LLC
Broad Street Principal Investments, L.L.C.
Goldman Sachs Asset Management, L.P.
West Street Strategic Solutions Fund I, L.P.
West Street Strategic Solutions Fund I-(C), L.P.
WSSS Investments W, LLC
WSSS Investments X, LLC
WSSS Investments I, LLC
WSSS Investments U, LLC
West Street CT Private Credit Partnership, L.P.
The shares of Class A Common Stock shown in the foregoing table: for Goldman Sachs, represents all of the shares in the aggregate shown in the table for GS&Co. and GSAM LP; for GS&Co., includes all of the shares shown in the table for BSPI; and for GSAM LP, represents all of the shares in the aggregate shown in the table for the GS Funds.
Pursuant to the Issuer's Second Amended and Restated Certificate of Incorporation, each share of Class A Common Stock entitles the holder to one vote on each matter submitted to a vote of the Issuer's stockholders and each share of the Issuer's Class B common stock, par value $0.01 per share (the “Class B Common Stock), entitles the holder to ten votes on each such matter, including the election of directors of the Issuer. The Reporting Persons do not own any shares of Class B Common Stock. Assuming no conversion of any of the outstanding shares of Class B Common Stock into Class A Common Stock, the 15,762,233 shares of Class A Common Stock beneficially owned in the aggregate by the Reporting Persons as of the day preceding the filing of this Amendment No. 2, constitutes approximately 1.1% of the aggregate voting power of the Class A Common Stock and Class B Common Stock (based on 141,500,385 shares Class B Common Stock outstanding as of August 14, 2025, as disclosed in Exhibit 2.1 to the Issuer's Form 8-K filed with the SEC on August 18, 2025.
In accordance with the SEC Release No. 34-39538 (January 12, 1998) (the “Release”), this filing reflects the securities beneficially owned by certain operating units (collectively, the “Goldman Sachs Reporting Units”) of Goldman Sachs and its subsidiaries and affiliates (collectively, “GSG”). This filing does not reflect securities, if any, beneficially owned by any operating units of GSG whose ownership of securities is disaggregated from that of the Goldman Sachs Reporting Units in accordance with the Release. The Goldman Sachs Reporting Units disclaim beneficial ownership of the securities beneficially owned by (i) any client accounts with respect to which the Goldman Sachs Reporting Units or their employees have voting or investment discretion or both, or with respect to which there are limits on their voting or investment authority or both and (ii) certain investment entities of which the Goldman Sachs Reporting Units act as the general partner, managing general partner or other manager, to the extent interests in such entities are held by persons other than the Goldman Sachs Reporting Units.
Each of the Reporting Persons (other than BSPI and the GS Funds, solely with respect to the shares of Class A Common Stock that they directly hold) expressly disclaims beneficial ownership of the shares of Class A Common Stock for purposes of Section 13(d) of the Exchange Act and the rules thereunder.
None of the Reporting Persons or, to the knowledge of any of the Reporting Persons, any of the persons listed on Schedules I, II-A or II-B in Exhibit 99.3 hereto may be deemed to beneficially own any shares of Class A Common Stock other than as set forth herein.
Goldman Sachs (PK) (USOTC:GSCE)
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Goldman Sachs (PK) (USOTC:GSCE)
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